Australia: Workplace discrimination: sometimes applicants should adjust their reasonable adjustments

Last Updated: 23 January 2019
Article by Edmund Burke

Most Read Contributor in Australia, January 2019

Kristjansson v State of Queensland [2018] FCCA 3894 

A decision in the Federal Circuit Court has again highlighted the importance of giving rational consideration to what the Court will deem to be 'reasonable adjustments' in relation to a claim of discrimination in the workplace. 

The applicant in this matter had been an employee of the Queensland Department of Health for a number of years. 

He took leave from 3 July 2009 until 21 July 2011 because he believed he was being bullied and harassed at work. 

The applicant was able to return to work for a number of years but again took leave in January 2015, after making reports of bullying and harassment that he said that he was experiencing.

A WorkCover claim was rejected in mid-2015 and after obtaining several medical reports the Department of Health embarked on a suitable duties plan (SDP), to help him to return to work.

The applicant was able to secure a four week placement at a Brisbane Hospital in September 2015. However on his first day at the new workplace the applicant arrived late, was poorly dressed, had poor personal hygiene and insisted that he would stand rather than sit at a desk as he’d had a standing desk in his previous position. He was not permitted to continue in the placement after that first day. 

While the search for another placement was underway the applicant emailed his requirement to his case manager that he would not meet with any potential placement supervisors unless it was confirmed that: 

  • he be able to record all discussions on a voice recorder
  • that he needed a stand-up desk
  • that his support person attend informal and formal meetings
  • that he have 24 hours’ written notice of any meetings 
  • that he be able to wear flat-soled shoes and that all directions be in writing.

Unsurprisingly the Department was unable to find a host placement that would agree to all of these conditions. Eventually, the applicant filed a claim with the Australian Human Rights Commission, which was unable to be resolved in the commission and on 13 November 2017, the applicant began proceedings in the Federal Circuit Court. 

He claimed that the Department’s inability to successfully return him to work constituted:

  • direct disability discrimination within the meaning of s 5 (1) of the Disability Discrimination Act 1992 (the DDA)
  • unlawful discrimination contrary to section 15 (2)(a), (b) and (d) of the DDA. 

His position was that the Department was at fault because it:

  • did not make reasonable adjustments for the applicant in respect of his disability
  • the failure to make the reasonable adjustments had the effect that the applicant was, because of the disability, treated less favourably than another employee of the respondent without the disability was, or would have been, treated in the circumstances that were not materially different.

Reasonable adjustments

The reasonable adjustments the applicant said the Department should have made were particularised as: 

  • to have a support person on the first day back and to be able to be contacted with any concerns, and the support person can attend informal and formal meetings
  • to be able to record any discussion on a voice recorder
  • all directions are to be in writing
  • at least 24 hours’ notice in writing for meetings to discuss worker – support person to be present.

In his decision Judge Vasta (after considering the medical evidence) found that the applicant did in fact have a disability, being OCD but that he had not been discriminated against as a result of this disability. 

On finding the first proposed adjustment of an ‘on call’ support person was not reasonable His Honour stated “the Department ends up having to train two people to do the one job, and expend all of the resources to train those two people.”

On finding the second proposed adjustment to record discussions was not reasonable His Honour stated: “I do think that imposing that upon a workplace will breed discontent, distrust..."

The adjustment requiring all directions to be in writing was not reasonable because: “That request is simply unjustifiable. Whilst some matters, when directions are given, could be put in writing afterwards so as to be confirmatory that is not what it is that is being asked here. It is for all directions to be in writing.”

Finally, the forth adjustment was not reasonable because it: “Simply means that a supervisor cannot even discuss a minuscule matter of the person’s work with them unless he is given 24 hours’ notice in writing and gets the support person there. Again, this is just not practical, and cannot be a way in which the workplace is run.”

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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