Key Points:
Although employers may wish to use various equivalents of a
"functional capacity assessment" during the recruitment
process, these can certainly have their limitations.
In Carman v Torrens Transit Services (North) Pty Ltd [2009] SAEOT 6, the Equal Opportunity Tribunal of South Australia held that a bus company that rejected a job applicant because he failed a "functional capacity assessment" unlawfully discriminated against that employee.
Mr Carman held various bus-driver positions for a number of companies from the 1960s onwards. Between 2000 and 2005 Mr Carman worked for bus company, Serco, until he was made redundant when Serco was unsuccessful in renewing its contract with the State Government. Torrens Transit, Southlink and Hills Transit were the successful tenders for the various routes previously serviced by Serco. Torrens Transit advertised for bus drivers in mid-February 2005. Six hundred applications were received for the 400 positions available.
Mr Carman applied for the position of bus operator with Torrens Transit. The application process required prospective employees to provide details of any previous workers' compensation claims or lump sum settlements. He provided details of a number of previous injuries for which he had received workers' compensation but had since recovered.
Mr Carman was interviewed in relation to his application. Following the interview process, any interviewee who had reported prior injuries to the neck, shoulders, knees or back was required to undergo a "functional capacity assessment" before they could be considered for appointment as a bus operator. The assessment examined a prospective employee's range of movement, grip strength, weight they could lift, fitness on a treadmill, ability to sustain a squat, body mechanics and back fitness.
Mr Carman participated in the functional capacity assessment and was deemed not to meet the "inherent physical requirements" for the position of bus operator. Mr Carman qualified his performance and noted, amongst other things, that he had sprained his knee shortly before attending the assessment. He believed that this inhibited his ability to perform a squat. In time his knee fully recovered from this injury.
Torrens Transit informed him that by failing to meet several standards specified in the functional capacity assessment, he was unable to meet the inherent requirements of the position and would not be offered a job.
Shortly after, Mr Carman successfully passed a medical examination conducted by his GP to renew his bus driver's licence. At the hearing, an occupational physician gave evidence for Mr Carman that he was able to fulfil the inherent requirements of the bus operator position without endangering himself or others. The occupational physician was critical of the use of the functional capacity assessment as it did not take into account the applicants' history.
Decision
The Tribunal determined that Torrens Transit had discriminated against Mr Carman on the ground of impairment in contravention of section 67(1) of the Equal Opportunity Act 1984 (SA) in the course of determining who should be offered employment. Torrens Transit argued its conduct was protected by the exemption in section 71(2) of the Act, which excuses discrimination if an applicant's impairment means they would not be able to perform the work without endangering themselves or others, or would not be able to adequately respond to emergency situations.
The Tribunal rejected this argument, noting there was an insufficient nexus between the tests that formed part of the functional capacity assessment and section 71(2) of the Act. It determined that at the time the decision not to employ Mr Carman was made, Torrens Transit did not have evidence before it which would reasonably point to Mr Carman not being able to perform the work of a bus driver without endangering himself or others. Nor did it have evidence which indicated Mr Carman would not be able to adequately respond to emergency situations. Mr Carman's results were not dissimilar to established health data for persons of his age and gender, and he had capably maintained employment as a bus driver over a lengthy career.
Relief
Mr Carman sought an apology, $10,000 in compensation for hurt and humiliation, and compensation for economic loss incurred during a period of unemployment and then casual employment, which he claimed were a result of the discrimination.
The Tribunal looked to compare Mr Carman's current position and the position he might have been in had the discrimination not occurred, noting, however, the discrimination in this case involved deprivation of an opportunity. The Tribunal awarded Mr Carman $12,000 for lost earnings, $15,000 to cover living away from home expenses incurred and $2,000 for hurt and humiliation. This amount was significantly lower than the amount claimed by Mr Carman, as the Tribunal found he had failed to expend sufficient effort to mitigate his loss.
Lessons
Although employers may wish to use various equivalents of a "functional capacity assessment" during the recruitment process, these can certainly have their limitations. This is particularly the case when the assessment fails to assess a person's physical impairments having regard to the nature of the work to be performed. Employers must ensure that if a person's physical impairments form the basis of a decision not to offer employment, those impairments must have a direct and real nexus to the work to be performed and inhibit the candidate's ability to perform the inherent requirements of the position without risk to health.
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