By Jeff Salton

In Shizas v Commissioner of Police (2017), Mr Shizas applied to become a police officer with the Australian Federal Police (AFP) on two occasions. In March 2013, the AFP gave Mr Shizas a conditional offer of employment in response to his application.

However, he later failed to obtain employment due to being diagnosed with ankylosing spondylitis (a disease that causes inflammation and pain in the spine and other joints). This was despite the AFP receiving a letter from Mr Shizas’ rheumatologist advising that there was “no restriction” on his ability to carry out the inherent job requirements, including the “use of force”.

The AFP refused to reconsider its decision, informing Mr Shizas that his medical condition was an excluded one under its medical standards. Mr Shizas lodged a complaint of disability discrimination with the Australian Human Rights Commission (AHRC).

In July 2014, the AFP again refused Mr Shizas application. This time, the AFP sought independent medical advice. The medical advice indicated that Mr Shizas’ medical condition meant he would have a “substantial” increased risk of injury in performing the role and such injuries were likely to be serious.

Mr Shizas withdrew the AHRC complaint and lodged an adverse action application with the Fair Work Commission and thereafter with the Federal Court. Mr Shizas claimed discrimination under section 351 of the Fair Work Act 2009 (Cth) (FW Act), specifically that the AFP had taken adverse action because of his condition of ankylosing spondylitis.

Section 351 of the FW Act provides:

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

An exception exists in section 351(2) of the FW Act, based upon the person’s inability to perform the “inherent requirements” of the particular position.

Verdict

The Federal Court found:

1. The AFP had refused to employ Mr Shizas in the first instance because of his physical disability. The AFP did not lead evidence to prove who had made the decision and on what basis. Hence, it could not be proven that the decision was taken because of Mr Shizas’s inability to perform the inherent requirements of the position. As such, it was held that the AFP took adverse action against Mr Shizas.

2. The AFP refused to employ Mr Shizas in the second instance on the basis he could not perform the inherent requirements of the position and would be “prone to injury”. As such, the reason not to employ was not Mr Shizas’s disability but rather the Commissioner’s concern that the candidate could not safely perform the inherent requirements of the role. This means the decision was not adverse action.

Lessons for you

It is important when defending adverse action claims to bring evidence of who the decision-maker(s) were and on what basis the decision has been made. The employer needs to show the genuine business reasons for taking the particular action. Employers must have proper evidence to support the refusal. In circumstances of disability, medical evidence is particularly important to support the inability of the person to perform the inherent requirements of the role.