Put it in writing: Court rejects employee’s proposed adjustments to workplace

Australia’s anti-discrimination legislation imposes positive obligations on employers to make reasonable adjustments in the workplace to accommodate an employee’s disability, unless doing so would cause unjustifiable hardship to the business.

A failure to make such reasonable adjustments may constitute disability discrimination.

In a recent decision, the Federal Circuit Court of Australia (the Court) considered the reasonableness of proposed workplace adjustments for an employee who had Obsessive Compulsive Disorder (Kristjansson v State of Queensland [2018] FCCA 3894).

The employee, a payroll client services officer with Queensland’s Department of Health, had been off work because he believed he was being bullied and harassed in the workplace. His employer made several attempts to engage him in a return-to-work process and find a placement for him within the Department.

After two failed attempts at a placement, the employee claimed he was unlawfully discriminated against because his employer had refused to make the following four reasonable adjustments to accommodate his disability:

• provide a support person on the first day who was able to be contacted with any concerns and to attend meetings with him;
• allow the employee to record any discussion on a voice recorder;
• that all directions to the employee be made in writing; and
• provide the employee with 24 hours’ notice in writing of all meetings.

Ultimately, the Court held that the employer had not unlawfully discriminated against the employee as alleged.

The Court went on to state that, even if the failure to provide those adjustments resulted in less favourable treatment to the employee, implementation of the adjustments would have caused the employer unjustifiable hardship. In particular:

• having to train an additional person to support the employee placed a ‘very high burden’ on the employer;
• allowing the employee to record any discussion would make it difficult to build and maintain trust and cohesiveness in the workplace and would likely have the effect of further ostracising the employee;
• requiring all directions to be made in writing was impractical and potentially unsafe – particularly in cases of emergency where directions needed to be followed urgently; and
• requiring 24 hours’ notice of meetings was impractical and contrary to how a workplace is run.

The Court dismissed the employee’s claim on all counts.

Lessons for employers

Employers should be mindful of the obligation to make reasonable adjustments to accommodate disabilities and assist an employee to perform their employment duties. In such situations, careful assessment should be made about what can reasonably be done to assist an employee in the circumstances of the particular business. However, there is a limit to the obligation and employers will not be required to make reasonable adjustments that impose unjustifiable hardship on their business.

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