Safety an 'inherent requirement' of the job

Cases

Safety an 'inherent requirement' of the job

The inability of an employee to perform the 'inherent requirements' of a position may constitute the basis of a defence in claims of disability discrimination in employment under the Disability Discrimination Act 1992(Cth).

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The inability of an employee to perform the 'inherent requirements' of a position may constitute the basis of a defence in claims of disability discrimination in employment under the Disability Discrimination Act 1992(Cth). The issue of safety often arises in this context, for example, is it an inherent requirement of a particular position that the employee be able to perform the job in a safe manner? In a recent decision an employer argued thisdefence with limited success.

'Inherent requirements' exception

Section 15(4) of the Actstates that it is not unlawful to discriminate against a person on the ground of the person's disability in recruitment and termination, if taking into account the person's past training, qualifications and experience, the person's performance as an employee, as well as other relevant factors, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment; or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose unjustifiable hardship on the employer.

The Logan case

In Logan v The State of Western Australia (Ministry of Justice), HREOC, No. H99/47, (12 September 2000), the complainant alleged that the termination of her employment as a prison officer and the refusal by the employer to consider her for a stores/laundry position within the prison constituted disability discrimination. The employer claimed that the complainant was prevented by a severe back injury from being able to restrain prisoners when required. In this regard the employer relied on s15(4), arguing that it was an inherent requirement of the position that a prison officer be able to restrain prisoners. The termination of the complainant's employment was therefore, according to the employer, not unlawful.

The employer also argued that it was an inherent requirement of the stores/laundry position (which is classified as an 'industrial officer's' position) that the employee be able to restrain prisoners. There was a general view within the employer that industrial officers were required to be able to restrain prisoners, however, the union's view was that this was not the case, and that industrial officers would call for assistance using their two-way radios. The stores/laundry position involved much less supervision of prisoners than a prison officer, however, it did require supervision of up to six prisoners performing laundry duties.

Inherent requirement to work safely

The Human Rights and Equal Opportunity Commission (the Commission) referred to the leading decision of Gummow and Hayne JJ in X v The Commonwealth [1999] HCA 63 (2 December 1999), where their Honours said that that an employee must be able to perform the inherent requirements of particular employment 'with reasonable safety to the individual concerned and to others with whom that individual will come into contact in the course of employment'.

Therefore, the question of whether an employee poses an unreasonable or undue risk to herself or others must, according to the Commission, dovetail with the employer's common law and statutory duties to provide a safe system of work and to take reasonable precautions to avoid hazards to employees. The Commission said,

Section 15(4) ought not to be construed so that an employer is found to have unlawfully discriminated by failing to allow an employee to continue working (notwithstanding a disability) when to allow her so continue leaves the employer open to being liable for damages for having negligently placed the employee at risk of injury (because of the disability).

The Commission then looked at the issue of whether the ability to restrain prisoners was an inherent requirement of the position of prison officer. The Commission found in the affirmative and said the ability to deal with situations where a need arises to physically restrain a prisoner is essential to being able to fulfil the inherent requirements of that employment.

The next question was whether the complainant was able to carry out that inherent requirement, given her serious back injury. The complainant said that she could perform this requirement, and argued that the risk posed to her by the need to restrain prisoners was not an unreasonable or undue one. 

The Commission rejected this submission stating,

... an employer who is aware that a particular employee has an existing medical condition which makes that employee particularly vulnerable to exacerbating that condition by performing ... an inherent requirement of the position is entitled to view the prospect of the employee suffering substantial pain and a significant period off work as amounting to an undue, unreasonable or unacceptable level of risk... To come to any other conclusion would be to require the employer to expose itself to the prospect of a claim in negligence by the employee.

The Commission concluded that the complainant was unable to restrain prisoners without an undue risk to herself or other prison officers.

Inherent requirements of stores/laundry position

The Commission found that the stores/laundry officer position involved contact with prisoners which was significantly more limited in nature, extent and circumstances than that entailed by employment as a shift prison officer. In the laundry part of the job, contact was limited to a small number of prisoners in a particular environment. The prisoners were specifically chosen to work there, and were unlikely to be the most difficult to manage and supervise. The stores role involved contact with prisoners, which was even more limited. The Commission said that the prospect arising where the stores/laundry officer needed to physically retrain a prisoner seemed to be substantially lower than for a shift prison officer.

The Commission was accordingly not satisfied that physical capacity to restrain prisoners was an inherent requirement of the stores/laundry position. The employer's actions in refusing to consider the complainant for that position amounted to unlawful discrimination.

Damages

The complainant was awarded the sum of $35,000 compensation for the lost opportunity to be properly considered for the stores/laundry position, and the sum of $3000 compensation for humiliation and injury to feelings. 

Comment

While the Commission or court and the employer may not always agree on what the inherent requirements of the particular employment are, this case has provided useful clarification that the ability to perform the job in a manner that is safe to the employee and others appears to be an inherent requirement of employment. It is to be noted that in cases where an employee has suffered a  work related injury and a workers compensation claim has been lodged, then there may be an obligation on the employer to genuinely attempt to provide light duties to the employee if prescribed under the terms of a rehabilitation program.

 

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