Federal and State Anti-Discrimination legislation makes it unlawful to discriminate against someone on the basis of a disability/impairment. However the occupational health and safety legislation (OHS) requires employers to provide a safe workplace for their employees.
These obligations can be a fine line when an employer suggests/allocates “suitable appropriate duties” for injured employees (i.e. workers who have pre-existing injuries, or who are injured at work and are then certified fit to return on normal or light duties).
Restricting working hours, denying overtime or varying work duties (‘suitable duties) can all potentially constitute discriminatory conduct.
For example, a court may find that restricting the number of hours an employee recovering from surgery is allowed to work is discriminatory conduct. However, this conduct can be authorised if the employer can show that because the employee could not safely for example manoeuvre heavy machinery, the restriction was necessary to comply with the OHS requirement of ensuring a safe workplace.
Real workcover examples
H J Heinz v Turner5 (2002)
The court held that a workplace policy banning employees on restricted duties from overtime was discriminatory, but was authorised by law as it was a regime of work practice designed to ensure the health and safety of employees in compliance with OHS legislation.
NSWADT in Higginson v Cargill6
In that case, an abattoir worker had major surgery to his knee and was warned that if he slipped or fell he could lose the use of his knee completely. Because of the greater risk for this employee, the employer did not allow him to return to pre-injury duties on the slippery abattoir floor. However, the Tribunal held that the employee was not at a higher risk of slipping than a non-injured employee and that his injury did not prevent him from performing his pre-injury duties safely. Consequently, it was held that the employer discriminated against the employee.
The employer argued that the conduct was necessary to comply with its obligation to ensure workplace safety, but the Tribunal adopted a restricted approach to the statutory exemption. Under this approach, the employer must establish that there is a specific requirement in the other relevant Act relied upon. It must also be shown that the nature of the work and disability, when viewed objectively, leaves no option or discretion but to engage in the discriminatory conduct in order to comply with the requirement. In this case, the Tribunal held that the conduct was not necessary.
French v Sydney Turf Club7 – no discrimination
The Tribunal found that the employer discriminated against an employee by restricting her shifts to four hours. However, as her work injuries precluded her from safely lifting, bending, twisting or lifting loads from below the level of her thigh, the Tribunal found that, viewed objectively, the employee could not safely work a full shift as a bar attendant either with or without reasonable accommodation. Consequently the employer’s decision to limit Ms French’s working hours was necessary to comply with OHS obligations and was lawful.
Perlidis v Brambles Security Service8 – discrimination
Mr Perlidis worked as a member of an armoured vehicle car-crew. He strained his back at work and subsequently returned to work with medical certificates stating that he could lift only restricted loads. The employer decided that based on these limitations, Mr Perlidis could not be a member of any overtime car-crew. The employer argued before the Tribunal that the discrimination was lawful, as, when working overtime, it is important for safety that all members are able to lift full loads. The Tribunal disagreed and found that this was discriminatory conduct. It was held that there were other overtime duties that Mr Perlidis could have performed and therefore it was not necessary to restrict his hours.
An employer’s honest belief as to the employee’s best interests or to the effect of other Acts will not be a defence.