Case Note: The Importance of Making Reasonable Adjustments for Employees

Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056

Background

This case concerned the applicant, Maureen Butterworth, who worked at Independence Australia Services (“IAS”) in the position of Customer Service Officer. IAS is a not-for-profit organisation providing communicated-based services to people with disabilities.

On 11 April 2013, IAS terminated the applicant’s employment with 5 weeks’ notice (paid in lieu). The applicant claimed that IAS directly discriminated against her during her employment and claimed recompense for losses amounting to approximately $18,000 plus “general damages” for pain and suffering arising from the circumstances of the termination of her employment. It was alleged that IAS discriminated against the applicant based on her disabilities which compromised of four conditions, namely:

• Fibromyalgia, diagnosed in about 2003;
• Chronic Fatigue Syndrome, diagnosed in 2003;
• A neck and shoulder injury suffered in about November 2011; and
• An adjustment disorder with features of anxiety and depression, diagnosed in about June 2013.

The applicant alleged that IAS discriminated against her by making unreasonable requests for medical information, requiring her to undertake new duties, subjecting her to bullying and harassment, failing to make reasonable adjustments to accommodate her disabilities and terminating her employment.

IAS denied that it discriminated against the applicant and submitted that the applicant’s employment was terminated because she risked further injury if she returned to her pre-injury duties and that there were no reasonable adjustments that could be made.

In around February 2013, IAS’ employment obligations under the workers’ compensation regime in Victoria came to an end. In April 2013, after a series of meetings with the applicant, IAS advised the applicant that it had decided to terminate her employment due to her ongoing and indefinite inability to perform her role. The applicant submitted at the hearing that she could have returned to her pre-injury duties had IAS reasonably accommodated her by deploying her into a different role and offering her duties in other areas of the business.

Legislative Requirements

In order to prove direct discrimination, the applicant was required to show that she was treated less favourably because of a protected attribute, being her disabilities, than a person without that attribute or with a different attribute in the same of similar circumstances. Notably, the legislation imposed an express obligation on IAS to make genuine and reasonable adjustments to accommodate the applicant’s disabilities unless the applicant would not be capable of adequately performing the genuine and reasonable requirements of her employment even after the adjustments were made.

Of particular importance in this case was the Court’s articulation of different examples by which an employer is able to make reasonable adjustments for an employee with a disability, including:

• providing a ramp for access to the workplace or a particular software package for computers;
• modifying work instructions or reference manuals;
• allowing the employee to be absent during work hours for rehabilitation, assessment or treatment; or
• allowing the employee to take breaks more frequently.

The Court also went on to note that in determining whether an adjustment is reasonable, all the relevant facts and circumstances must be considered, including:

• the person’s or employee’s circumstances, including the nature of his or her disability;
• the nature of the employee’s role or the role that is being offered;
• the nature of the adjustment required to accommodate the person’s or employee’s disability;
• the financial circumstances of the employer;
• the size and nature of the workplace and the employer’s business;
• the effect on the workplace and the employer’s business of making the adjustment including:
  • the financial impact of doing so;
  • the number of persons who would benefit from or be disadvantaged by doing so;
  • the impact on efficiency and productivity and, if applicable, on customer service of doing so;
  • the consequences for the employer of making the adjustment;
  • the consequences for the person or employee of not making the adjustment; and
  • any relevant action plan made to accommodate the protected attribute under Part 3 of the Disability Discrimination Act 1992 (Cth).

Findings

In respect of the applicant’s claims, the Court found that the restrictions placed on her duties in 2011 was not discriminatory and dismissed any claim for the difference between the payments received by the applicant under the workers’ compensation regime in Victoria and her normal wages.

However, the Court found that IAS failed to make reasonable adjustments for the applicant once its obligations under the workers’ compensation regime finished in early 2013, and discriminated against the applicant in terminating her employment. On this very point, the Court found that it was uncontentious that IAS had the ability to redeploy the applicant within three different areas of the business to accommodate her requirement to perform more non-telephone work. It was observed that doing so would have had no financial impact on the employer, and caused no detriment to the applicant. In the result, the Court held that IAS could have made reasonable adjustments had they tried by redeploying her.

Relevantly, the Court held further that after an employer has complied with any return to work obligations and that period comes to an end, an employer is not simply entitled to terminate the employment without regard to other obligations such as those contained in human rights legislation. In this regard, an employer still has an obligation to make reasonable adjustments to accommodate the injured employee and cannot merely rely on the inherent requirements defence.

The Applicant was therefore awarded lost wages from the time of her termination until she obtained alternative employment. The award for economic loss assessed by the Court was $3,325.25. In addition, the Court awarded the applicant general damages of $10,000 in respect of feelings of hurt, distress and humiliated experienced by the applicant as a result of the dismissal.

Learnings

Whilst the monetary value awarded in this case was heavily moderated by the fact that the applicant secured alternative employment within a short period of leaving IAS, the decision is a significant reminder to employers of their obligation to make genuine and reasonable adjustments to accommodate employees with a disability. Although this case considered the application of the provisions under the Victorian regime, it is worth noting that New South Wales imposes equivalent obligations on employers.

If you have any employment law issue, or an employee with an injury or disability and wish to discuss how best to accommodate them in the workplace, please do not hesitate to contact us for specialist advice or assistance.