The Collision Between Safety and Equal Opportunity

1. The Collision Between Safety and Equal Opportunity Nicholas Ellery, Partner 21 August 2003 168539

2. Focus on Disability Discrimination • When is compliance with OS&H obligations a defence to non-compliance with anti-discrimination laws? • Accommodation of employees’ disabilities - how far must you go? • When is this an issue? - Medical examinations: • pre-employment medical checks • medical examinations of existing employees

3. Myriad of Obligations • OS&H obligations • Anti-discrimination laws (state and federal) • Unfair and unlawful termination laws • Privacy laws

4. Federal Act Disability Discrimination Act (Cth) renders it unlawful to discrimination against a person with a disability when deciding: • who should be offered work • the terms and conditions of work • dismissing an employee • subjecting the employee to any other detriment

5. Federal Act Exceptions • If, taking into account all relevant factors it is reasonable to take into account, the person, because of the disability would: • be unable to carry out the inherent requirements of the job; or • to be able to carry out the job, require services and facilities not required by others, the provision of which would impose an unjustifiable hardship on the employer (s15(4)). • if the discrimination results from compliance with a requirement of another Act (s47)

6. State Act Equal Opportunity Act (State) It is unlawful to discriminate against a person with an impairment when deciding: • who should be offered work • the terms and conditions of work • dismissing an employee • subjecting the employee to any other detriment (s66B)

7. State Act Exceptions • If it is reasonable for the employer to conclude that, because of the impairment: • the person would be unable to carry out the work required; or • services and facilities not required for others would be required • If something is done in compliance with another Act (s69(1))

8. State v Federal • Complainant can choose which jurisdiction • Exceptions in Federal Act harder for employer to access • State legislation has cap on damages - $40,000 • “Inconsistency” • If federal proceedings are not successful, can access state laws, but not vice versa.

9. OHS Legislation • OHS legislation requires employers to ensure the health, safety and welfare at work of all employees. • So, when will these OHS considerations override anti-discrimination obligations?

10. When will this arise? • Medical examinations, either: • pre-employment medical checks • medical examinations of existing employees

11. Pre-Employment • Employers may wish to conduct pre-employment medical checks for a number of reasons: • where the employee discloses a medical condition or other illness or disability • where the work to be performed involves high risk of physical injury

12. Pre-Employment • Can an employer use information obtained in a pre-employment medical to refuse to employ someone? • The answer is yes, subject to: • Privacy Act requirements • anti-discrimination legislation • occupational safety and health laws

13. Prospective Employees • An employer can only collect medical information about a prospective employee that is necessary to determine the suitability of the applicant for the position of employment • The information must be collected from the prospective employee or from a third party with the prospective employee’s consent • Consent must also be given to pass the information on to relevant agencies or health professionals

14. Pre-Employment Medicals - Procedure • Medical examinations must be conducted in accordance with contemporary anti-discrimination laws and practice • Where an employer is considering whether or not to engage a prospective employee it is necessary for the prospective employee’s medical information to be analysed by reference to the inherent requirements of the position • The medical officer conducting the examination must understand the “inherent requirements” of the position and the capacities required to perform the position, as well as being aware of anti-discrimination laws

15. Gehrig v McArthur Mining • Gehrig v McArthur River Mining Pty Ltd (1997) EOC 92-872 • Mining company was ordered by the Northern Territory Anti-Discrimination Commissioner to pay $14,000 to an occupational nurse denied a job based on a pre-employment medical assessment • Nurse held a temporary placement at the minesite before she applied for a permanent position and was required to undergo a medical examination

16. Gehrig v McArthur Mining • Medical centre advised the Mining company that she would not be able to carry out duties because of previous history of back pain • Commissioner found it was unreasonable for the Mining company to rely solely on pre-employment medical - must take into account all matters relevant to the employment application on a non-discriminatory basis

17. Gehrig v McArthur Mining • It was found that the Mining company had failed to: • consider nurse’s past employment • recognise that medical examination was done without reference to a detailed job description • take steps to make sure that Medical Centre was aware of relevant anti-discrimination laws

18. Lesson • This case shows that an employer cannot delegate the decision-making regarding an employee’s ability to perform the duties of the position to a doctor (or anyone else)

19. Pre-Employment Medical - Discriminatory • Airflite Pty Ltd v Goyal [2003] WASCA 45 • Employee refused a position as a aircraft handler due to medical evidence of a previous wrist injury, a stiff lumbar spine, weak abdominal muscles, possible hernia, low lung function, potentially high blood pressure and poor eyesight • Employer said it had a duty of care and an OHS obligation • The employee obtained specialist medical evidence that he was fit to work as an aircraft handler

20. Pre-Employment Medical - Discriminatory • Goyal casecont... • The tribunal found that the employee had been treated less favourably • There is no legal requirement that the employee be able to carry out the work without risk of injury • Mere reliance on the opinion of a medical practitioner is not sufficient especially where no attempt has been made to ensure that the practitioner is applying appropriate and non-discriminatory methods of assessing applicants

21. Pre-Employment Medical - Discriminatory • Goyal casecont... • Employer applied the wrong test when it refused employment • Should have considered whether Goyal was “unable to carry out the work reasonably required” • Instead, considered what it should do to minimise its safety risks.

22. Unable to Perform Inherent Requirements • Perlidis v Brambles Security Services Ltd t/as Brambles Armoured [2003] NSWADT 11; (2003) EOC 93-264 • P began work as a security guard in a car crew transporting cash weighing up to 42kg. • In May 1990, P injured his back at work and on his return to work commenced light duties. P was not rostered on for overtime work. • By February 1996, P could only lift 29kg and Brambles terminated his employment because after rehabilitation there was no certain prognosis for future return to work.

23. Perlidis v Brambles - Issues • The following issues were raised before the ADT: • whether an overtime restriction imposed on P constituted unlawful discrimination • whether P was able to carry out the “inherent requirements” of his position, with or without provision of services/facilities by Brambles • whether Brambles could rely on the defence of compliance with another Act (OHS Act) in defending its decision to dismiss P

24. Perlidis v Brambles - Findings • ADT found that Brambles, in restricting P’s overtime hours, was subjecting P to less favourable treatment on the grounds of his disability • Was a defence established on grounds of OHS compliance? • ADT noted that unlawful actions will not be exonerated automatically by virtue of compliance with another law. Distinction must be drawn between those cases where it is necessary to discriminate, and those where there are alternatives which would ensure compliance with the OHS Act, but where the employer still chooses to discriminate.

25. Perlidis v Brambles - “Inherent Requirements” • ADT held that P’s position required him to lift weights of more than 29kg and that at the date of his dismissal he was unable to do that • P was unable to meet the inherent requirements of his position • However, it was found that Brambles had not given any consideration to potential assistance, and it had not established that such assistance would have imposed an unjustifiable hardship on it

26. Perlidis v Brambles -OHS as a Defence • Brambles argued that the unlawful discrimination was rendered lawful by its compliance with OHS law • ADT considered that whether or not P’s continued employment constituted a risk to his safety, or that of his workmates, depended on: • the nature of the employment • the nature and duration of the disability • whether any assistance could be provided that would allow the employee to carry out their duties safely

27. Perlidis v Brambles • According to the ADT, Brambles should have considered whether P could have been provided with assistance to carry out his duties and/or explore alternative ways in which that work was carried out. As it failed to do so, Brambles was unable to rely on s54 as a defence. • This decision can be contrasted with Cosma v Qantas Airways Ltd [2002] FCA 640 (appealed to Full Federal Court, appeal dismissed).

28. Cosma v Qantas • C was employed by Qantas as a “porter in ramp services”. This involved removing baggage and cargo from aircraft with other “gang members”. Tasks were rotated between members. • C injured his shoulder at work in 1991. On his return to work he performed clerical duties as he was not fit enough to work as a porter. • C was terminated in 1997. As at that date, he was still unfit to return to his pre-injury position.

29. Cosma v Qantas - Questions • Heerey J answered the following questions to determine whether C had been unlawfully terminated: • what was C’s particular employment at the time of the discrimination? • what were the inherent requirements of that particular position? • was C unable, because of his disability, to carry out the inherent requirements of his position?

30. Cosma v Qantas - Questions (cont’d) • if yes, what services or facilities not required for persons without the disability would the applicant have required to carry out of those inherent requirements? • would the provision of such service or facilities impose an unjustifiable hardship on Qantas?

31. Cosma v Qantas - Findings • Heerey J found that: • C’s particular employment at the time of the discrimination was “porter in ramp services”. It was affirmed on appeal that the appropriate position that must be analysed is the position the employee held prior to the injury/disability • the inherent requirements of C’s position as porter included manual handling of luggage, as a member of a team, and various associated physical duties

32. Cosma v Qantas - Findings (cont’d) • C was unable, because of his disability, to carry out the inherent requirements of his position as porter. • in considering the services and facilities which could be provided by the employer, an employer was not required to alter the nature of the particular employment or its inherent requirements. The services or facilities are external to the “particular employment” which remains the same.

33. “Testing” Fitness for Duty • The decision of Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd (appealed on reinstatement issue) dealt with fitness for duty issues. • B was reinstated following a successful unfair dismissal application. Ramsey advised B that although he was reinstated he would not be required to report to work until he attended a medical examination. • Ramsey was concerned as to the physical capacity of B to perform certain duties and the potential health and safety risks.

34. Blackadder v Ramsey • B declined to undertake medical examination on the basis that his reinstatement was not conditional • Because of this refusal, B intermittently did not receive wages, or was directed to use accrued leave until he attended the medical examination

35. Blackadder v Ramsey - OHS Findings • Madgwick J found that: • it is essential for compliance with OHS duties that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence regarding fitness for duty • it was not unreasonable in this case for B to refuse the medical examination where no bona fide concern for his, or any other employees’, safety had been substantiated by the employer • it was not appropriate for Ramsey to refuse to pay wages in these circumstances

36. Pre-Employment Medical Testing - Best Practice • HREOC recommends that the following practices be adopted: • medical examiner to have the job specification so recommendations made relate specifically to job • only information relevant to the position should be sought • where there is a concern, examiners should seek advice and assessment from vocational specialists • strict confidentiality should be ensured • applicants to be advised of results

37. Conclusion • Pre-employment medicals should always focus on whether the prospective employee is capable of fulfilling the inherent requirements of the position • The OHS defence to unlawful discrimination may not be successful if the employer hasn’t considered alternative ways for work to be carried out • Bona fideconcerns as to an employee’s fitness for duty may warrant medical examinations for OHS reasons

38. Conclusion... • Remember: the provisions of the Workplace Relations Act relating to unlawful termination and unfair dismissal still apply