Recently we have had a number of queries around managing current employees who are managing long term illnesses or injuries, or employees looking to return to work after having extended periods of leave due to illness or injury.
We quickly remind employers that such long term illness or injury is likely to fall within the scope of the meaning of disability under anti-discrimination legislation.
It is essential to remember that there are different pieces of legislation relating to different types of discrimination and there is different legislation in different states/territories and the Commonwealth that can apply simultaneously. This can make compliance with anti-discrimination legislation complex and difficult for employers.
For the purposes of this article we want to look fairly generally at the concept of employers making “reasonable adjustments”. Each jurisdiction and piece of legislation has its own subtleties and so each situation must be considered on a case by case basis. We recommend getting advice on your particular situation.
Reasonable adjustments are changes to a person’s work environment that allow people with a disability to work safely and productively. Employers can be required by law to make reasonable adjustments to the workplace for employees with disabilities. Failure to do so may constitute unlawful discrimination.
Employers are not required to make adjustments to their workplace if they can demonstrate that such an adjustment would be too expensive, difficult or time consuming or cause some other hardship to the employer. This would demonstrate that such an adjustment would cause “unjustifiable hardship” and therefore would not be reasonable.
A recent decision of Kristjansson v State of Queensland  FCCA 3894 looked at reasonable adjustments.
In this matter the Applicant was preparing to return to work from a long period off work due to a psychological injury caused by workplace bullying. The “reasonable adjustments” he requested included:
- being able to record all discussions on a voice recorder;
- having his support person attended informal and formal meetings;
- receiving 24 hours written notice of any meetings;
- that all directions be in writing.
The employer was unable to find a suitable placement for the Applicant to return to work to accommodate those conditions. The Applicant filed a discrimination complaint with the Australian Human Rights Commission claiming that the inability to successfully return the Applicant to work constituted disability discrimination under the Disability Discrimination Act 1992 as the employer did not make reasonable adjustments.
After consideration of the medical evidence available, Judge Vasta found that the Applicant had a disability, but had not been discriminated against.
In relation to the reasonable adjustments sought, His Honour found:
- having “on-call” support person: was not reasonable because “the department ends up having to train two people to do one job, and expend all resources to train those two people.”;
- voice recording all discussions: was also not reasonable because “I do think that imposing that upon a workplace will bring discontent, distrust …”;
- all directions to be in writing: was also not reasonable because “that request is simply unjustifiable. Whilst some matters, when directions are given, could be put in writing after so as to be confirmatory that is not what is being asked here. It is for all directions to be in writing”;
- at least 24 hours notice in writing of all meetings: was also not reasonable because it “simply means that the supervisor cannot even discuss a miniscule matter of a person’s work with them unless he is given 24 hours notice in writing and gets a support person there. Again, this is just not practical, and cannot be a way in which the workplace is run.”
While common sense prevailed in this situation, in order to fulfil obligations under relevant anti-discrimination legislation it is important for employers to ensure they consider reasonable adjustments that can be made to accommodate those employees who have a disability to allow them to work.
The above case confirms that a Court will not force an employer to make adjustments that result in a complete disruption to the working relationship. It also demonstrates that it is not just economic concerns are considered, but also matters of practicality that will be taken into account.