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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Think before you dismiss…Employers’ obligations to provide assistance to injured workers - Equal Time, May 2003
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Think before you dismiss…Employers’ obligations to provide assistance to injured workers - Equal Time, May 2003
 Introduction
Disability discrimination in employment
The Perlidis case
Inherent requirements
Provision of services and facilities
Section 54 defence
Information about services and facilities
Consider other laws also
Introduction
Many employers appear to be unclear about their obligations towards injured workers under anti- discrimination laws. There seems to be a common belief that after employers have made attempts at rehabilitation and complied with statutory time limits under workers’ compensation laws, they can dismiss an employee who is unable to return to pre-injury duties. This ignores a further step that is required before dismissal can lawfully take place.
An employer considering the dismissal of an injured employee who is unable to return to pre-injury duties must make some attempt to find out whether any assistance can be provided to help the employee perform those duties. They should also consider whether all the existing duties are essential to the position. Failing to do this before dismissing the employee can result in the employer being unable to defend a claim of disability discrimination by the employee.
A recent decision of the NSW Administrative Decisions Tribunal, Perlidis v Brambles Security Services Limited Trading as Brambles Armoured [2003] NSWADT 11, highlights the issues in this area. The employer argued that its dismissal of the injured complainant were not unlawful because it came within certain exceptions in the NSW Anti-Discrimination Act. Essentially, the Tribunal rejected this argument because the employer had not considered whether any assistance could be provided to help the complainant to do his pre-injury duties. 
Disability discrimination in employment
The Anti-Discrimination Act provides that it is unlawful for an employer to discriminate against an employee on the ground of disability by, among other things, dismissing them. An exception applies if the person would be unable to carry out the inherent requirements of the particular employment; or would require services or facilities to carry out those requirements that would impose an unjustifiable hardship on the employer (s 49D(4)).
In determining whether the exception applies, the Tribunal is required to take into account the complainant’s relevant past training, qualifications and experience, and if applicable, the person’s performance as an employee. All other relevant factors that it is reasonable to take into account should also be considered.
From the wording of the exception in s 49D(4) it appears that an employer is required to prove either that the employee is unable to carry out the inherent requirements of the job or that services or facilities required by the employee would impose unjustifiable hardship on the employer. However, the High Court said that both arms of the exception must be met when discussing a similar provision in the federal Disability Discrimination Act 1996 in the case of X v The Commonwealth (2000) CLR 177.
The Perlidis case
The complainant was employed as an armoured vehicle operator, a member of a crew which collected, transported and delivered cash, valuables and/or payroll on behalf of the employer’s clients.
The complainant suffered a back injury at work in 1992, after which he was placed on light duties. Despite the employer’s attempts to rehabilitate him, he was not able to return to his pre-injury duties, which involved lifting weights of up to 42 kilograms. The employer terminated the complainant’s employment in 1996 on the basis that all efforts at rehabilitation had met with limited success, and that there was no certain prognosis for his return to pre-injury duties.
The complainant alleged that he was discriminated against by the employer in a number of respects, including that the termination of his employment was based on his disability. The employer argued that the dismissal of the complainant was based on his inability to carry out the inherent requirements of his job, not his disability. The Tribunal found that the complainant’s disability was one of the reasons the employer decided to dismiss him, and awarded him $16,365 in damages.
Inherent requirements
In defending the claim of discrimination, the employer relied on the exception in the first part of s 49D(4), that the complainant was not able to meet the inherent requirements of the particular employment. The Tribunal accepted that lifting weights of up to 42 kilograms was an inherent requirement of the armoured vehicle operator’s position, and found that the complainant was unable to meet this requirement.
Provision of services and facilities
The Tribunal then considered the second part of the exception in
s 49D(4), that is, whether providing the complainant with services and facilities to enable him to do the job would cause the employer unjustifiable hardship.
Section 49C requires that all relevant circumstances of the particular case are to be taken into account when determining what constitutes unjustifiable hardship, including the benefits or detriments to any persons concerned, the effect of the disability, and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
The Tribunal determined that the employer is obliged to assess whether there are services or facilities that would enable an employee with a disability to carry out the inherent requirements of their position, for example by asking the employee or getting a workplace assessment. It said that while s 49D(4) does not require an employer to provide an employee with alternative or light duties, it does require them to consider whether the employee could carry out the inherent requirements of the position with the assistance of services or facilities.
The employer gave evidence that in recent years it had considered whether it would be possible to redesign the work of the armoured vehicle operators in a more ‘ergonomically sensitive’ way. However, there was no evidence that the employer had considered whether it was possible for the complainant to return to normal duties with assistance at the time he was dismissed. The employer was therefore not entitled to the benefit of the defence in sec 49D(4).
Section 54 defence
The employer also relied on the defence contained in s 54 of the ADA, which provides, among other things, that it is not unlawful to discriminate if this was necessary in order to comply with any other Act. The employer argued that it was required to dismiss the complainant in order to comply with the Occupational Health and Safety Act.
The Tribunal accepted that the complainant’s health and safety may have been at risk if he had been returned to his pre-injury duties, and the health and safety of his co-workers may have been compromised if he had remained on light duties. However, the Tribunal said that because the employer did not explore alternative ways in which that work could be carried out, it had not established that it was necessary for it to dismiss the complainant in order to comply with the OHS Act.
The Perlidis case makes it clear that an employer attempting to rely on the exceptions in s 49D(4) and s 54 must be able to demonstrate that they made some attempt to find out whether there were services, facilities or assistance that could be provided to enable the employee to carry out their pre-injury duties. Failing to do so will make it very difficult for an employer to defend a claim of discrimination if an employee was dismissed because of their inability to return to pre-injury duties.
Information about services and facilities
Depending on the nature of the employee’s injury, there are a number of sources of information about services, facilities or assistance that could be provided to employees to help them perform their pre-injury duties. These include the employee’s medical and rehabilitation advisors; the employer’s rehabilitation advisor; the relevant trade union; a relevant disability association; and an OHS or ergonomics consultant.
Consider other laws also
This article focusses on employers’ obligations in relation to the dismissal of injured workers under anti-discrimination law, but other relevant laws should also be considered before dismissal takes place. Under unfair dismissal laws, employers have the additional obligation of considering whether there is suitable alternative employment before dismissing an injured worker. Employers who are unclear about their obligations in this area should seek the assistance of their legal adviser or industry association.
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