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Weighty matters: when five kilos can make the difference to keeping a job

Feature Articles

Cite as: (2005) 79(9) LIJ, p. 48

Although anti-discrimination law can be used to help injured workers, both the state and federal legislation provide exceptions to discrimination.

By Peter Holding

Either state or federal anti-discrimination law can be used to assist injured workers to stay at work, return to work, or receive compensation for discrimination. In theory, the legislation may also be used to obtain reinstatement.

The Equal Opportunity Act 1995 (Vic) (EOA) includes “impairment” as an attribute on which discrimination is prohibited.

The Disability Discrimination Act 1992 (Cth) (DDA) prohibits discrimination on the ground of “disability”.

There is no practical difference between “impairment” and “disability”. Both effectively cover total or partial loss of bodily functions, mental disorders, presence in the body of organisms that may cause disease, a condition or disorder that creates learning difficulty. Both cover conditions that have previously existed or are imputed.

A person must elect to proceed under state or federal legislation when they lodge a complaint. No particular form is required – a letter will suffice. All relevant facts and incidents of discrimination should be included.

Careful consideration should be given to the respondent named (generally the employer and any individual who is alleged to have perpetrated discrimination).

Although the jurisdictional election is often made before legal advice is obtained, it is of some importance. In Victoria unresolved complaints are referred to the Victorian Civil and Administrative Tribunal (VCAT), where costs are not generally awarded in the Anti-Discrimination List. Federally they are referred to the Federal Court or Federal Magistrates Court, where costs usually will be awarded, although rejection of offers of compromise have resulted in costs being awarded against successful applicants.[1]

Problems with claims

Anti-discrimination claims on the grounds of impairment/disability are subject to exceptions. Both Acts provide that discrimination is permitted in certain circumstances.

The EOA permits discrimination where the person cannot perform the “genuine and reasonable requirements of the employment” even with the provision of special services or facilities, or where that provision is not reasonable in the circumstances (see s22).

The DDA permits discrimination where the person is unable to carry out the inherent requirements of the particular employment, or in order to carry them out would require services or facilities which would impose an unjustifiable hardship on the employer (see s15(4)).

Under both Acts the person’s past training, qualifications and experience and performance in addition to the impairment/disability are relevant.

To complicate matters further, the Workplace Relations Act 1996 (WRA), which only concerns the issue of discrimination in termination of employment, prohibits dismissal on the ground of the disability except where termination is based on the “inherent requirements of the particular position concerned”. There is no reference to the provision of services or facilities.

There are two main advantages associated with s170CK of the WRA that are absent from the EOA and DDA:

  1. Section 170CQ provides a reverse onus of proof. The employee need not provide the reason for termination but it is a defence for the employer to prove that the termination was for reasons that did not include disability. The reverse onus is important, particularly as anti-discrimination tribunals routinely, and arguably erroneously, require evidence to the standard required in Briginshaw v Briginshaw [2] before they are prepared to make a finding of discrimination.[3]
  2. While costs cannot generally be recovered by a successful applicant who sues for breach of s170CK, the court may award a penalty of up to $10,000, with payment to the applicant (see ss170CR and 356).

However, the section does not provide for a claim in relation to discrimination that occurred prior to termination. There will be no remedy unless the discrimination was one of the reasons for the termination.

It is not possible to combine a claim of discriminatory termination under s170CK with a claim of discriminatory termination under the EOA or DDA. This is because of the operation of s170HB of the WRA, which effectively prohibits multiple proceedings “for a remedy in respect of that termination”.

In theory it may be possible to combine a proceeding for breach of s170CK alleging discrimination in terminating the employment with a complaint under the DDA alleging discrimination prior to termination and to have both matters heard together in the Federal Court. However, it does not appear that this has ever occurred.

The wording of the exceptions differs slightly in the three Acts:

  • “genuine and reasonable requirements of the employment”, taking into account provision of reasonable facilities and services (EOA);
  • “the inherent requirements of the particular employment”, taking into account provision of facilities and services that would not impose unjustifiable hardship on the employer (DDA); and
  • “the inherent requirements of the particular position concerned”, with no consideration of provision of facilities and services (WRA).

The main interpretation cases are Qantas Airways Ltd v Christie[4] (Christie); X v Commonwealth[5] and Cosma v Qantas Airways Ltd[6] (Cosma).

A distillation of High and Federal Court cases indicates:

  • an inherent requirement is something essential to the position (see Gaudron J, McHugh J and Kirby J (dissenting) in Christie);
  • inherent requirements go beyond a mere physical ability to carry out the tasks and responsibilities required of the position (see McHugh J in X v The Commonwealth);
  • an employer cannot create an inherent requirement by stipulating something that is not essential or stipulating qualifications or skills disproportionately higher than the work to be done (see Gaudron J in Christie);
  • if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship (see Gaudron J in Christie);
  • a practical method of determining whether a requirement is inherent is to ask whether the position would be essentially the same if it were dispensed with (see Gaudron J in Christie);
  • inherent requirements include tasks and responsibilities required under the express or implied terms of the contract of employment. Those terms may be supplemented by requirements of statute or a certified agreement (see Gummow J in Christie and McHugh J in X v The Commonwealth);
  • position concerns rank and status, but what is required of a person’s position will usually require an examination of the tasks performed from that position. That is because the capacity to perform those tasks is an inherent requirement of the particular position (see McHugh J in Christie at paras 72-73);
  • “particular employment” describes the actual employment the employee was required to perform pursuant to his or her contract of employment. Some employees may be employed to perform specific duties. Others may be employed to perform unspecified general duties, and some employees originally employed to perform particular duties will come to perform quite different duties as the result of an express or implied variation to the contract of service (see joint judgment of the Full Court in Cosma);
  • where an injured worker is transferred to alternative duties as part of a rehabilitation program the “particular employment” remains the same. This is distinct from an agreement (express or implied) that the original duties would be changed, other than in the context of assigning temporary duties as part of a rehabilitation program (see para 21 of the joint judgment of the Full Court in Cosma); and
  • most employment inherently requires the ability to work in a way that does not pose a risk to fellow employees (see McHugh J in X v The Commonwealth).

The situation of an employee who is unable to perform as originally employed but is provided with suitable employment pursuant to the obligations of the employer under s155 (previously s122) of the Accident Compensation Act 1985 (Vic) remains unclear, and will depend on the particular case. Under the rationale in Cosma, the inherent requirement exception will protect the employer if the employee has been assigned only temporary duties under a rehabilitation program, even over an extended period. In Cosma, the employer had a clearly defined rehabilitation policy and the employee was always assigned duties by a rehabilitation case manager under the program.

Gummow and McHugh JJ appear to accept that “inherent requirements” may be “supplemented by requirements of statute or ... a certified agreement”. On this basis, despite Cosma, it might still be open to argue that by definition an employee must be able to perform the inherent requirements of “suitable employment” and that the obligations under s155 “supplement” the inherent requirements.

Other decisions indicate that where an employee performs suitable duties for long enough, without any facts clearly indicating a temporary basis, the employee’s contract will be regarded as having been varied. The Full Court in Cosma recognised this distinction. Variation may occur whether or not the duties were originally provided pursuant to a duty to provide them under statute or certified agreement, or absent any such duty.[7]

It should be possible to argue that rehabilitation provisions in a certified agreement are capable of supplementing “inherent requirements”.[8]

The Federal Court recently applied Cosma in Cucanic v IGA Distribution (Vic) Pty Ltd,[9] where an employee with a work-related back injury was able to lift 15 kilos in weight. However, the Court held that the job required him to lift 20 kilos, and dismissed the application on the basis that he was unable to perform the inherent requirements of his position. It gave no weight to the fact that he was still performing work within the scope of his award classification when the termination took effect. Marshall J held:

“Mr Cucanic’s position was his job. Before his injury, his job was to perform the tasks of a Storeworker Grade II in the dry grocery and general merchandising areas ... His position or job was not the post-injury, lighter duties, employment, which he engaged in as part of a rehabilitation program. His ‘job’ or ‘position’ was not any work IGA may find for him to do within his classification without aggravating his back injury. But for the injury to his back, Mr Cucanic would have been expected to continue to perform storeworker duties in the dry grocery area for a majority of his working time ... within the competencies of a Storeworker Grade II”.

The decision in Cucanic indicates that anti-discrimination legislation provides inadequate protection from dismissal to injured employees who have a substantial capacity for productive work but are unable to perform the full range of their duties. Such employees may be better off claiming harsh, unjust or unreasonable dismissal, although at the time of writing the Coalition government appears set to abolish such claims where a company employs fewer than 100 employees.

The Australian Industrial Relations Commission has ordered reinstatement of two employees despite their inability to perform all of the tasks for which they were originally employed.[10] The Full Bench was swayed to order reinstatement due to a range of factors, including:

  • the modified duties being performed by the injured employees being within the scope of their original positions, although they could not perform all their duties;
  • substantial length of service;
  • size of the employer (200 employees);
  • advancing middle age of the employees; and
  • limited opportunities for alternative employment in the region.

Harassment

Injured workers frequently experience harassment: name-calling, suggestions of feigning injury, or constant refusal by employers to observe the conditions on an injured worker’s medical certificate.

Complaints can be lodged to prevent harassment or to seek compensation. Injured workers usually just want the harassment to stop. Quite severe psychological injury can be caused by such treatment.

The DDA contains anti-harassment provisions (see s35). The EOA does not, but it prohibits subjecting employees to detriment (s14(d)) and denying a benefit to the employee (s14(a)).

The Supreme Court has held that one of the benefits of employment is quiet enjoyment. Harassment by an employer deprives the employee of that benefit and subjects the employee to a detriment.[11]

Harassment by fellow employees is covered, and the employer may be vicariously liable if it fails to take reasonable preventive precautions.

Directions to work contrary to a medical certificate

This frequently experienced problem may constitute indirect discrimination under the EOA or the DDA.

Under the EOA indirect discrimination involves the imposition or proposed imposition of a requirement, condition or practice:

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute can comply with; and

(c) that is not reasonable.

The authorities have interpreted the words “does not” or “cannot” comply very broadly to include not just a physical but a practical inability, and to include inability to comply without assistance and inability to comply in a similar way to those without the relevant attribute.[12]

Attempts to impose duties that are not in accordance with the certificate of incapacity may involve the imposition, or attempted imposition, of a requirement or condition or practice with which the worker cannot comply, even if the worker can perform the duties but only with pain or other negative consequence. Thus where a person could drive a long distance but this resulted in fatigue and could not be done without naps or assistance, it has been held that the person could not “comply” with the requirement to drive the distance.[13]

Unless the employer can somehow successfully challenge the bona fides of the medical certificate, it is likely to be considered unreasonable to require a person to work outside the scope of the certificate.

Injunctive relief under EOA, VCAT Act and DDA

Under s131 of the EOA, a complainant may apply to VCAT for an interim order to prevent an employer from “acting in a manner prejudicial to negotiations or conciliation or to any decision or order VCAT might subsequently make”.

VCAT must have regard to:

  • whether there is a prima facie case; and
  • the possible detriment or advantage to the public interest in making the order; and
  • any possible detriment to the complainant’s case if the order is not made.

VCAT also has power to grant an injunction under s123 of the VCAT Act. This is a power additional to the power under s131 of the EOA.

The normal preconditions of a serious question to be tried, balance of convenience and undertaking as to damages, are applied.

At any time after a complaint has been lodged with the Human Rights and Equal Opportunity Commission, the Federal Court may grant an interim injunction to maintain:

  • the position of the parties to the complaint immediately before the lodging of the complaint; or
  • the rights of the parties to the complaint pending completion of the matter the subject of the complaint.

The Court cannot require an undertaking as to damages as a condition of granting the injunction.

Interim orders may be useful for injured workers in a number of situations. Whether they are likely to be granted will depend very much on the facts of the particular case. But situations in which interim relief may be a useful tool include:

  • to order that harassment cease;
  • to restrain the employer from requiring the employee to perform work outside the scope of the employee’s medical certificate;
  • to prevent the termination of an employee on the grounds that he or she is unable to perform the inherent requirements of the employment; and
  • to restrain the employer from filling a dismissed employee’s position pending completion of his or her complaint under the relevant legislation.[14]

PETER HOLDING is a member of the Victorian Bar. This article was written in association with Kamal Farouque of Maurice Blackburn Cashman.


[1] Batzialas v Tony Davies Motors [2002] FMCA 243 (16 October 2002); Gluyas v Commonwealth of Australia (No 2) [2004] FMCA 359 (24 June 2004).

[2] (1938) 60 CLR 366.

[3] See “The Briginshaw standard of proof in anti-discrimination law: pointing with a wavering finger” (2003) MULR 13 for a persuasive argument about misapplication of the Briginshaw standard in anti-discrimination law.

[4] (1998) 193 CLR 280.

[5] (1999) 200 CLR 177.

[6] (2002) FCAFC 425 (20 December 2002).

[7] See Brown v Blackwood & Son Ltd (unreported, Industrial Relations Court of Australia, 24 October 1997, DI 1007 0f 1997, Farrell JR); AMIEU v George Weston Foods Pty Ltd, AIRC, PR924011.

[8] The AMIEU case is an example of a certified agreement playing an important role in an unfair dismissal finding with a reinstatement requirement (injured workers).

[9] (2004) FCA 1226.

[10] Smith v Moore Paragon (Lawler VP, Kaufman SDP and Mansfield C, 20 January 2004, PR942856).

[11] See R v Equal Opportunity Board ex parte Burns [1985] VR 317.

[12] See Judd v Department of Transport and Regional Services & Anor [2000] VCAT 2495 (31 December 2000).

[13] See Board v State of Victoria (DEET) [2002] VCAT 1097 (2 October 2002).

[14] In Montgomery v Monash University (2000) VCAT 408 VCAT granted an injunction restraining the employer from filling two positions pending hearing under the EOA.

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