Employers who are considering terminating the employment of an injured worker for being unable to undertake the requirements of the role must enquire as to whether the employee could adequately perform the job if reasonable adjustments were made. To do otherwise can amount to unlawful discrimination.

Dziurbas v Mondelez Australia Pty Ltd (Human Rights) [2015] VCAT 1432 (9 September 2015)

The Facts

The Plaintiff was a 63 year old confectioner employed by Mondelez Australia Pty Ltd working on a production line style machine which packaged chocolate products.

In September 2011, the Plaintiff injured his elbow working on a machine in the course of his employment. The injury was diagnosed as "tennis elbow" and he made a workers' compensation claim. He returned on light duties after five days and his duties were managed under his compensation claim until January 2013. At that time, it was accepted the Plaintiff had fully recovered from the elbow injury.

Unrelated to the elbow injury, and during the course of the compensation claim, the Plaintiff had some non-work related hernia symptomology. He had surgery in June 2013, after which he took eight weeks leave for his recovery.

On 23 October 2013, the Plaintiff was given a letter terminating his employment effective immediately on the basis Mondelez understood he did not have the capacity to undertake the inherent requirements of his role. The decision was largely based on an independent medical report obtained following two inconsistent reports from the Plaintiff's own doctor regarding his capacity.

The Plaintiff brought a claim in the Victorian Civil and Administrative Tribunal (VCAT) claiming he was subject to direct and indirect discrimination, along with discrimination by way of a failure to make reasonable adjustments to his role in breach of the Equal Opportunity Act 2010.

Findings

It was held by VCAT that Mondelez had not properly investigated the Plaintiff's role at the time of his termination. It had been assumed by Mondelez that the Plaintiff was largely required to operate a steel bank machine which was accepted to be a fairly onerous task. The reality, however, was the Plaintiff performed a myriad of other less physical tasks and this meant Mondelez's claim that the Plaintiff was not physically able to undertake the role, or at least parts of it, was unfounded. On that basis VCAT held the Plaintiff had been directly discriminated against by reason of his disability.

Further, it was held Mondelez had not made appropriate enquiries as to whether the Plaintiff's role could be reasonably adjusted to accommodate him. This was in breach of section 20 of the Equal Opportunity Act which imposes an obligation on employers to make reasonable adjustments for employees with disabilities. VCAT also found Mondelez failed to obtain medical evidence as to what reasonable adjustments could be made.

This amounted to discrimination on the basis that "even if Mondelez had been correct in its understanding of [the Plaintiff's] substantive role, it made no attempt to consider whether any adjustments at all could be made to reduce the risk of injury arising from his disability" 1 .

In this regard, it is also worth noting section 21A of the Disability Discrimination Act 1992 (Cth) provides it is not unlawful for a person to discriminate against another on the grounds of disability if, because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer made reasonable adjustments for the aggrieved person

An award of $20,000.00 was made to compensate the Plaintiff for injury to his feelings. VCAT also noted an intention to award the Plaintiff more than $230,000.00 for economic loss unless Mondelez could give compelling reasons, in further submissions, as to why such a figure was incorrect.

Conclusion

Employers who are considering terminating the employment of an injured employee need to consider each situation individually, ensuring they have a correct understanding of the employee's role.

If an employer is considering terminating a worker on the basis they cannot undertake the requirements of their role, enquiries should be made as to whether an employee could adequately perform the job if reasonable adjustments were made. Further medical evidence should be obtained as to the appropriateness of the adjustments.

Footnote

1 At [170]

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