Job refusal for health reasons discriminatory

Cases

Job refusal for health reasons discriminatory

A bus operator’s refusal to hire a driver after a functional capacity assessment found he failed to meet the physical requirements of the job, has been found to be discriminatory in South Australia.

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A bus operator’s refusal to hire a driver after a functional capacity assessment found he failed to meet the physical requirements of the job, has been found to be discriminatory in South Australia.
 
In February 2005, Torrens Transit (TT) won the State Government contract for public bus operations. The bus driver, who had been made redundant from the company that had lost the contract, applied to TT for a driving position.
 
During the application process, the driver listed his previous injuries and workers compensation claims history and also underwent a functional capacity assessment carried out by Corporate Health Group (CHG).
 
The CHG report concluded that he failed to meet ‘the inherent physical requirements for the position of bus driver’. The finding was based on assessments of his range of movement, cardiovascular fitness, back fitness and grip strength — all of which were either rated as ‘poor’, ‘below average’ or ‘restricted’.
 
On the belief the worker could not perform the role without endangering himself or others or be able to respond in an emergency situation, TT advised the driver that ‘due to your inability to meet the inherent requirements of the position of bus operator, we are unable to offer you a job at this time’.
 
The driver claimed TT had contravened the Equal Opportunity Act 1984 by discriminating on the basis of impairment.
 
Job analysis not included
 
Justice Sue Cole and Members Helena Jasinski and Anne Bachmann found the report was not sufficient reason to reject the driver’s employment application.
 
‘We do not consider that Torrens Transit had information or advice before it, at the time that the decision was made not to employ Mr Carman (driver), from which it could reasonably have concluded that MrCarman would not be able to perform adequately and without endangering himself or other persons,’ the Tribunal said.
 
‘Ms Schirmer (CHG’s clinical services director) asserted that the tests administered were based upon a job analysis report, but her evidence went no further than establishing that it was her understanding that the designers of the test were in possession of the job analysis.'
 
‘Ms Schirmer was not able to say whether, and, if so, on what basis, the risk of endangerment and the ability to respond in an emergency might have been taken into account in the design of the tests.’
 
Tests ‘ambiguous’
 
The Tribunal also found the results of the tests were reported in a manner that was ‘ambiguous’.
 
‘A deficiency in cardiovascular fitness was cited, but the “detailed assessment results” part of the Corporate Health Group report showed that Mr Carman had achieved an “average” fitness level on the treadmill test, though this was transcribed as “below average” in the summary,’ they said.
 
‘The nexus between the particular deficiencies exhibited by Mr Carman on the day of the test and his ability to perform the duties of a bus operator without endangering himself or others, and to respond adequately to emergencies, were not identified in the Corporate Health Group’s report to Torrens Transit.’
 
TT was found to have contravened the Equal Opportunity Act and the driver was awarded $29,000 in damages: $12,000 for loss of earnings, $15,000 for living away from home expenses and $2000 for the injury to his feelings.
 
 
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