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 OSH 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

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Myriad of Obligations

• OSH obligations
• Anti-discrimination laws (state and federal)
• Unfair and unlawful termination laws
• Privacy laws

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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

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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)

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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)

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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))

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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.

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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?

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When will this arise?

• Medical examinations, either
• pre-employment medical checks
• medical examinations of existing employees

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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

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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

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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 employees consent
• Consent must also be given to pass the
  information on to relevant agencies or health
  professionals

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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 employees 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

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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

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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

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Gehrig v McArthur Mining

• It was found that the Mining company had failed
  to
• consider nurses 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

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Lesson

• This case shows that an employer cannot delegate
  the decision-making regarding an employees
  ability to perform the duties of the position to
  a doctor (or anyone else)

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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

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Pre-Employment Medical - Discriminatory

• Goyal case cont...
• 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

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Pre-Employment Medical - Discriminatory

• Goyal case cont...
• 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.

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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.

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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

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Perlidis v Brambles - Findings

• ADT found that Brambles, in restricting Ps
  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.

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Perlidis v Brambles - Inherent Requirements

• ADT held that Ps 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

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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 Ps 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

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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).

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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.

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Cosma v Qantas - Questions

• Heerey J answered the following questions to
  determine whether C had been unlawfully
  terminated
• what was Cs 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?

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Cosma v Qantas - Questions (contd)

• 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?

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Cosma v Qantas - Findings

• Heerey J found that
• Cs 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 Cs position as
  porter included manual handling of luggage, as a
  member of a team, and various associated
  physical duties

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Cosma v Qantas - Findings (contd)

• 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.

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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.

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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

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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

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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

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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 hasnt
  considered alternative ways for work to be
  carried out
• Bona fide concerns as to an employees fitness
  for duty may warrant medical examinations for OHS
  reasons

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Conclusion...

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