The Legislation

The Equal Opportunity Act 2010 (Vic) defines direct discrimination and indirect discrimination. In very simple terms: direct discrimination occurs where a person is treated less favourably than another because of a protected characteristic they have, or are thought to have; and indirect discrimination is where a practice, policy or rule applies adversely impacts a group/class of persons, when compared to another group /class of persons. It is illegal in Victoria to discriminate against a person in a number of situations; including when a person is at work.

Background/Introduction

Edmund Dziurbas (Dziurbas) was employed by Mondelez Australia Pty Ltd (Mondelez) as a confectioner. In September 2011, Dziurbas injured his left elbow working on the ‘steel band’ machine. By early 2013, Dziurbas had fully recovered from his elbow injury.

During the course of the work cover claim, Dziurbas had some non-work related hernia trouble. That condition limited his work capacity until he had surgery in late June 2013. On 23 October 2013, Dziurbas was told by Mondelez that his employment was to be terminated. Mondelez believed that Dziurbas no longer had the capacity to undertake the inherent requirements of his previous role as a confectioner.

It is illegal in viCtoria to disCriminate against a Person in a number of situations; inCluding wHen a Person is at work.

Dziurbas claimed that the termination of his employment constituted direct discrimination, indirect discrimination and discrimination by way of a failure to make reasonable adjustments contrary to the Equal Opportunity Act 2010 (Vic) (EO Act).

In broad terms, Mondelez contends that Dziurbas was unable to undertake the genuine and reasonable requirements of his role, even if reasonable adjustments were made, and so there was no unlawful discrimination and no breach of the obligation to make reasonable adjustments.

Decision

The Court found that:

“(Mondelez) believed that... (Dziurbas)... was unable to resume what they understood to be his full duties without risk of further injury arising from the earlier elbow injury and that belief was based on the opinion given by Dr Baker about the likely risk of future injury arising from... Dziurbas’... ongoing health conditions.

“The primary reason for termination of... (Dziurbas’s)... employment was his ongoing health conditions and a presumed risk of future injury because of those conditions”.

“I find that a substantial reason for the decision to terminate... (Dziurbas’s)... employment was his disability and accordingly that Mondelez engaged in direct discrimination”.

“Whether that discrimination is prohibited by section 18 of the EO Act depends on whether the exception contained in section 23 of the EO Act applies”.

“In summary, section 23 permits discrimination against an employee on the basis of the employee’s disability if three requirements are met. First, the employee requires adjustments in order to perform the genuine and reasonable requirements of the employment. Second, where section 20 applies, the employer has complied with that section. Third, whether or not section 20 applies, the adjustments are not reasonable having regard to the facts and circumstances set out in section 20(3)”.

“Section 20 imposes an obligation on an employer to make reasonable adjustments for an employee with a disability where adjustments are required in order for the employee to perform the genuine and reasonable requirements of the employment. The reasonableness of any adjustments is to be determined having regard to all relevant facts and circumstances, including the non-exhaustive list of matters set out in section 20(3). Section 20(2) provides that reasonable adjustments must be made unless the employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made. A breach of section 20 is an act of discrimination”.

“Section 20 creates an obligation to make reasonable adjustments for an employee with a disability. The reasonableness of any adjustments is to be determined by reference to all relevant facts and circumstances”.

“The word ‘adequately’ in section 20(2) is important. The employee does not have to be capable of performing the genuine and reasonable requirements of the employment perfectly – just adequately”.

“The question of whether a person is able to adequately perform the genuine and reasonable requirements of the employment must be judged on those requirements as a whole. A person may still be able to perform adequately the requirements of the employment as a whole, even though he or she is unable to perform, or unable adequately to perform, a particular requirement”.

“A complete inability to perform a major requirement of the employment in circumstances where non-performance with that requirement will result in a risk of death or serious injury, should be viewed differently from a slight defficiency at performing a minor requirement of employment where there is no likelihood that a risk to life or property would result”.

“I am satisfied that there was scope for adjustments to what I have found to be the genuine and reasonable requirements of the role of confectioner”.

“I have found that there were adjustments which ought to have been considered by Mondelez and that they were likely to have been reasonable taking into account:

  • the evidence of the work .. (Dziurbas)... did while on light duties; the proportion of time... (Dziurbas)... spent on each of the bagger machines pre-injury and the weights he was required to lift as a proportion of the total time worked; and
  • the Mondelez commissioned Act if functional capacity examination completed in February 2013”.

“Further, on the evidence available at the hearing, Mondelez has not demonstrated that it complied with section 20 of the EO Act because it has not produced evidence to demonstrate that, even if reasonable adjustments were made, the genuine and reasonable requirements of the employment as found could not have been adequately performed by... Dziurbas”.

Summary: lessons to be learned

This decision demonstrates that an employer has an obligation to fully investigate all issues regarding an employee’s capacity to undertake the inherent requirements of the job; including the possibility of making reasonable adjustments prior to making any decision as to whether the employee should, or should not be returned to work.

Without undertaking such an examination and /or assessment, an employer may well be found to have breached the EO Act, if they terminated the employment of an employee who is suffering from an injury (whether that injury be work related or a private injury).

Should there be any questions about the contents of this article, Members may contact Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers, on 03 9321 0720, 0425 790 722 or phil.eberhard@plumber.com.au
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