An employee is subject to unlawful discrimination on grounds of their disability if they are less favourably treated by the employer on account of their disability than someone who did not have the disability, in circumstances that are not materially different.

The reason for such a comparison is to determine the real reason for the less advantageous treatment. Was it connected with the employee’s disability?

In 2009, the Disability Discrimination Act 1992 (Cth) was amended to create a general duty on employers to make reasonable adjustments to avoid discrimination based on disability. Employers that do not make those adjustments have a defence if the adjustments would cause unjustifiable hardship.

The onus is on the employer to establish such a level of hardship. This requires balancing the competing interests of the disabled person with those of an employer.

These issues were explored by the Federal Circuit and Family Court of Australia in Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd (2023), which examined the way an employer handled an employee’s non-work-related injury.

Case background

The employee in this case suffered an injury outside of work and required wrist surgery. This prevented him from working. The injury was not compensable under workers’ compensation and, due to his lack of accrued sick leave, he went on unpaid leave.

When the employee submitted a medical certificate, the employer barred him from returning to work until he had full medical clearance.

Comparing treatment to someone without a disability

The Court created a comparator being a person without disability who was not an ideal employee, who did not meet the employer’s expectations in obtaining a driver’s licence, but who was a qualified diesel mechanic, in an economic situation in which such individuals were at a premium in the industry.

The hypothetical employee:

• had been forced to take unscheduled leave for an extended period due to a reason unrelated to employment, such as carer’s leave;
• indicated an ongoing commitment to the relevant position by attending the staff Christmas party and the team building event, while absent from the workplace; and
• at the conclusion of the extended leave, indicated an ability to return to the workplace, and a willingness and desire to do so.

The Court concluded that such a person is likely to have been welcomed back to the workplace, particularly given the issues relating to short supply of diesel mechanics in the industry, despite the employer’s perception regarding the individual’s shortcomings as an employee. Therefore, because the employee in this case was not so welcomed back, it must have been attributable to the employer’s perception of the employee’s disability.

On this basis, the Court found the employee was subject to less favourable treatment on account of his disability in the sense that he was not able to return to his work.

Considering reasonable adjustments

The Court then considered whether the employer could have made reasonable adjustments to facilitate the employee’s return to work, and whether any such adjustments were either made or proposed to be made.

When considering what kinds of modifications or alterations might have been used to enable the employee to return to perform his work, it is necessary to take into account that sufficient time needs to be assigned to allow them to have the desired effect. This requires consideration of the nature of the disability.

In this regard, the Court concluded that the evidence showed a staged return to the workplace was possible to see how the employee coped with it and some of the tasks, which required heavy carrying and moderate gripping strength. It would have been open to arrange a functional capacity assessment based on how the employee actually engaged with his duties in the workplace itself. These would have been reasonable adjustments, which involved a greater degree of proactivity, on the part of the employer than what actually occurred. Instead, the employer took the view that the employee had to establish to its complete satisfaction that he had no discernible disability whatsoever before it would permit him to return to work.

The Court did not consider these adjustments imposed unjustifiable hardship on the employer. While the employee’s return to work would have constituted some form of hardship for the employer, it was not unjustifiable. The employee retained a significant level of capacity and the disability was capable of resolving within the short-term. The employer was a multinational company. The loss of the employee’s ability to work and support himself financially was a significant detriment.