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February 2019

Requested adjustments to the workplace for a disabled worker rejected

Requested adjustments to the workplace for a disabled worker rejected

Kristjansson v State of Queensland (2018)

The Case

The Queensland Department of Health (Qld Health) employed Mr Kristjansson, who took leave between July 2009 and 2011, claiming he had been bullied and harassed at work.

Mr Kristjansson later returned to work and then made a workers’ compensation claim in 2015, which was rejected. Qld Health worked with Mr Kristjansson to try to secure his return to work.

After a number of failed placement attempts, Mr Kristjansson emailed Qld Health and advised he would not accept
any more placements unless the following requirements were met:

  • permission to record all discussions had with him on a voice recorder;
  • provision of a support person to attend informal and formal meetings with him;
  • provision of 24 hours’ advance written notice of any meetings to be held with him;
  • directions to him to be provided in writing;
  • provision of a stand-up desk;
  • permission to wear flat-soled shoes.

Qld Health could not find a placement for Mr Kristjansson that would accept all his requirements. Mr Kristjansson made a discrimination claim with the Australian

Human Rights Commission, which eventually progressed to the Federal Circuit Court (FCC).

The Verdict

Mr Kristjansson claimed Qld Health had discriminated against him by failing to make the reasonable adjustments he requested to accommodate his disability.

The FCC found there was no unlawful discrimination by Qld Health and dismissed Mr Kristjansson’s claims.

The FCC indicated that even if there had been less favourable treatment, the requirement to provide the adjustments
that Mr Kristjansson requested would impose an unjustifiable hardship on Qld Health, in that:

  • allowing Mr Kristjansson to record all discussions would create distrust and likely ostracise him further from his colleagues;
  • the requirement to train and provide a support person for every meeting Mr Kristjansson attended would be a “very high burden”;
  • requiring 24 hours’ advance written notice for all meetings with Mr Kristjansson was impractical; and
  • the requirement to ensure all directions be made in writing to Mr Kristjansson was not practical or safe, particularly in an emergency.

The Lessons

All employers must consider what reasonable adjustments can be made in the workplace to accommodate an employee with a disability, to enable them to perform the inherent requirements of their position. However, you are not required to make adjustments that will impose an unjustifiable hardship on the business, such as those sought by Mr Kristjansson on the facts of this case.

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