Lawful disability discrimination

Cases

Lawful disability discrimination

The acknowledged discrimination against a prospective employee because he had an impairment was considered lawful because there was a risk the employee could become permanently incapacitated as a result of the work in the future.

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The acknowledged discrimination against a prospective employee because he had an impairment was considered lawful because there was a risk the employee could become permanently incapacitated as a result of the work in the future.

Background

The complainant had been involved in a serious motor vehicle accident on his way to work which caused permanent injury to his wrists and lower forearms. After rehabilitation and a brief return to his previous position the complainant completed a course to gain entry into the timber industry. The course included some practical work with which the complainant had no difficulty (Osborne v CSR Timber Products; Equal Opportunity Tribunal (SA); No 210 of 1997).

The complainant applied for a position with the employer at their Mount Gambier mill and because he had completed the timber industry entry course, he was not required to undertake an interview. He was however, required to undertake a functional capacity evaluation and medical examination prior to being offered employment. It was not until these tests were completed that he was informed that he would not be offered a position.

The complainant lodged a complaint of discrimination on the grounds of impairment with the Commissioner for Equal Opportunity in South Australia who formed the opinion that the complaint lacked substance. However, the complainant required the Commissioner to refer the complaint to the Equal Opportunity Tribunal in the State.

Tribunal decision

The Tribunal was satisfied that "given that [the complainant] had successfully completed the 20 week entry course and that the company had positions available in its mill, he would, but for those injuries, have been offered employment in the mill." It was found the complainant was treated less favourably than a person without such injuries.

Although the Tribunal found that the employer discriminated against the complainant on the basis of his impairment, it was submitted by the employer that the Tribunal consider whether such discrimination was unlawful with regard to s71of the South Australian Equal Opportunity Act 1984which provides for exemptions. Section 71(2) states:

"71(2) This Division does not apply to discrimination on the ground of impairment in relation to employment if the person suffering from the impairment is not, or would not be able –

"(a) to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or

"(b) to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question."

It should be noted that the related provisions in the federal and New South Wales legislation rely on whether the person with the disability can perform the inherent requirements of the job.

To determine this matter the Tribunal considered the evidence of two of the medical experts who examined the complainant. The experts gave evidence that the complainant was "able to undertake and adequately discharge all work which would be required of him were he employed as a millhand." The Tribunal accepted this point however noted that both had concerns about the future effects of the work on the complainant.

A large part of the job involves rotating boards that can weigh up to 10kgs or more and vary in length between 0.9m and 6m. It is this rotating action that the medical experts felt could cause the complainant, over time, permanent injury. It was stated that although "a system of rotation is used in the mill, these actions can continue for hours and are most repetitious. They place a special strain on the wrists and forearms of the worker, and have the capacity to inflict a form of repetitive strain injury, even upon workers who have no pre-existing injury."

One of the experts stated, "should [the complainant] be employed in the mill and undertake these duties, there is a substantial risk that the repetitive nature of these activities will injure him, possibly permanently and substantially."

The Tribunal asked the question, in the context of s72(1) of the Act, "whether the risk that [the complainant] would injure himself is of such a nature that he would endanger himself."

The Tribunal held:

"On the evidence before us, the risk relates to an injury to [the complainant’s] wrist and forearms of such a nature as to substantially incapacitate him, possibly on a permanent basis. Thus we have come to the conclusion that, although we are satisfied that [the complainant] would have been able in September, 1996, to work satisfactorily in the mill, he would not have been able to adequately perform the work genuinely and reasonably required ‘without endangering himself’."

The Tribunal found that the employer had lawfully discriminated against the complainant. The complaint was dismissed.

 

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