A recent decision of the Civil and Administrative Tribunal New South Wales determined that a disability support service employer contravened discrimination laws when deciding not to employ a candidate as a casual disability support worker (DSW), because of the candidate’s own health conditions.  The employer was required to pay $10,000 general damages and three months’ wages (based on 1 shift per week).

Facts

As part of its recruitment process for DSWs, LiveBetter Services Limited (LiveBetter) required candidates after a successful interview, to undertake a pre-employment physical assessment with an exercise physiologist to determine whether they could perform the inherent requirements of the role.

The exercise physiologist considered the candidate’s health conditions, including having experienced a heart attack 8 years earlier with stent inserted, shoulder bursitis and tendonitis, a hernia, lower lumbar pain and neck pain (physical disabilities), some of which were exacerbated by certain physical work. The exercise physiologist assessed her performance of various strenuous physical activities and concluded that the physical disabilities were well managed and the candidate could perform the inherent requirements of the casual DSW role without adjustments.

However, despite the positive opinion of the exercise physiologist, the Head of HR manager decided to reject her application on the basis that her “employment in the position of DSW would present a significant risk to LiveBetter”.

The Candidate’s Submissions

The candidate claimed LiveBetter’s decision not to employ her because of her disability contravened sections 49D(1)(a) and (b) of the Anti-Discrimination Act 1977 (NSW) since she could perform the inherent requirements of her role, consistent with the opinion of the exercise physiologist and her own experience working in her own family building and maintenance business and as a hospital assistant for another employer.

LiveBetter’s Defence

LiveBetter did not dispute that it decided not to employ the candidate because of her disabilities, but sought to defend the claim by relying on the complete defence in s. 49D(4)(a) and (b) –  that the candidate would have been unable to fulfil the inherent requirements of the role, or that providing required adjustments would impose unreasonable hardship on LiveBetter.

Specifically, LiveBetter submitted:

1. the candidate posed a significant risk to herself (exacerbation of injury), fellow employees and clients (e.g. unable to lift in emergency scenario); and
2. to provide a safe workplace they would need to significantly adjust the position’s manual handling requirements which would create a “highly modified unfunded supernumerary role’ resulting in a modified role that excluded many essential functions of the DSW role.

LiveBetter asserted that it was not funded by NDIS to provide services or facilities for employees who could not carry out the inherent requirements of a job.

Decision

The defence failed.

The first step was for the tribunal to identify the inherent requirements of the DSW role.  The tribunal observed that this consideration includes considering the “indispensable requirements, permanent attributes or essential elements”. The tribunal determined there was a “lack of exactness as to what the specific inherent requirements of the DSW role were” and described the HR manager’s conclusion as “speculative and impressionistic”. The evidence of the exercise physiologist was preferred since it was based on objective facts and the results of a functional assessment.

Further, as a large employer of about 1500 staff, no evidence was provided as to estimated cost or disruption or impact on operations if adjustments were made. The Tribunal was not prepared to accept, without evidence, that government funding for people living with disabilities is structured in such a manner that it would cause an organisation to rely on it as a reason for discriminating against a person with disabilities.

What Does This Decision Mean For Employers?

• Any decision not to employ candidates because of a physical disability must not be made lightly.
• When arranging a functional assessment, it is beneficial to ensure the exercise physiologist is provided with a comprehensive description of the inherent requirements of the job.
• Identifying the inherent requirements of a role requires detailed consideration of the specific physical requirements of a role, including the frequency of performing each requirement.
• Any decision to override an opinion as to a candidate’s suitability, as set out in a functional assessment, must be made in reliance on extremely persuasive evidence.

WilliamsonBarwick frequently assists organisations with legal advice to enable them to comply with their legal obligations towards candidates and employees with physical disabilities.  We are only a phone call away if your organisation would like our assistance.