Employer pays hefty price for discriminating against worker after out-of-work injury

The Federal Circuit and Family Court of Australia recently dealt with the case of an injured worker who filed a discrimination lawsuit against his employer for failing to reasonably accommodate him after an injury.

The issue revolved around whether the employer neglected “to make adjustments” for the worker’s return to work and if such adjustments would have imposed unjustifiable hardship on the employer.

Mark Panazzolo was employed by Don’s Mechanical and Diesel Services Pty Ltd. The worker claimed that he experienced discrimination in his employment due to a wrist disability resulting from an assault outside of working hours. He was unable to return to work after the incident but believes he has since recovered enough to resume his duties.

On the other hand, the employer argues that accommodating Panazzolo’s return to work would have been impractical as he could not fulfill the “inherent requirements” of his previous role, and any necessary workplace modifications would have caused undue hardship.

The worker brought the proceedings under the Disability Discrimination Act 1992 (Cth), and the court explained that it needed to balance the interests of Panazzolo, as a person with a disability, against those of Don’s Auto as his employer.

The worker’s assault
On 15 October 2020, while walking his dog on a public pathway near his home, Panazzolo experienced an assault by two individuals.

The incident reportedly had no link to his employment, and it happened beyond working hours. The worker suffered a fracture to his left ulna, one of the two forearm bones. To address the injury, he underwent surgical repair, which involved the insertion of a metal plate and screws to stabilize the fracture.

As a result of the surgery, the surgeon advised him that he would be unable to engage in any heavy lifting or loading involving his injured arm for approximately three months after the operation, which took place on 21 October 2020.

His work duties
The worker was a heavy vehicle diesel mechanic at the employer’s workshop, and according to the parties’ contract, the worker had to perform the following tasks:

  • Changing brake shoes;
  • Draining oil;
  • Lubricating steering;
  • Replacing clutches;
  • Replacing oil filters;
  • Rotating tyres;
  • Unbolting gearboxes

After his assault and resulting injury, Panazzolo believes that, based on his prior experience at the workshop, where he received assistance from fellow workers for heavier tasks, he was fully capable of returning to work from early 2021 onwards. His view was supported by medical practitioners who have treated him.

On the other hand, the employer maintained that the nature of the duties required by Panazzolo, especially tasks involving pneumatically powered rattle guns, wheel hub removal, and clutch replacements, could potentially exceed his physical capabilities due to the injury in his left wrist.

The employer also “points to the duty of care, which his business owes to all its customers, which include public bus operators, to ensure that repairs to vehicles are conducted properly, so that the vehicles concerned are safe, when they leave his workshop.”

Employer requests various tests and physical assessments
In late December 2020, Panazzolo sent a text message to Disciscio inquiring “if he still had a job at Don’s Auto” and indicating his view that his orthopaedic surgeon had cleared him to return to work. He clarified “whether he had a job or not,” and added that “he was cashing in cans so he can eat.”

The employer required him to perform “various static strength tests” and assessments including “grip strength, and cardiovascular fitness.”

As this was an out-of-work injury, the employer suggested that it would be at the worker’s expense. After a series of exchanges between the parties, the employer wrote to the worker that returning to the job might carry “a risk of aggravation to your current injuries.”

Out of the worker’s “frustration,” the court noted that “he had done all that he could think of to satisfy the demands of Don’s Auto regarding the provision of a full medical clearance and personally had no funds to secure such a thing.”

“As a consequence of what he characterises as a stalemate, on 4 August 2021, he formally resigned from Don’s Auto on the basis that he had no alternative given his financial situation, which necessitated him applying for social security benefits, which were not available to him because of the notional availability of employment at Don’s Auto.”

“It was in this context that Panazzolo made a complaint of disability discrimination to the Australian Human Rights Commission on 17 June 2021.”

Was there discrimination or not?
In its decision, the court noted that Panazzolo “never returned to the workshop following his wrist injury.” The worker argued that Don’s Auto “did not attempt to make any adjustments to his duties to accommodate what he would characterise as, at the worst, a temporary disability or, on the most optimistic gloss which he would apply, one which had totally resolved by January 2021.”

The court also emphasised that the worker “felt stuck between a rock and a hard place in the sense that it was his perception that he could not return to work without physiotherapy and he could not afford the cost of physiotherapy without having an income.”

“Essentially, he was beholden to [the employer’s] personal judgement regarding whether he could or could not return to work and nothing he said or produced would influence this judgement.”

The court explained that even though this injury took place outside of his work, due to the existing employment relationship between the parties, the employer was legally bound not to discriminate against him based on this disability.

“Notwithstanding the fact that this injury occurred in a situation unrelated to his employment, as a consequence of the then-existing employment relationship between Panazzolo and Don’s Auto, the latter was subject to the legal obligation not to discriminate against the former on the basis of such disability and, as a corollary of such obligation was required to make or propose to make reasonable adjustments to its workplace to prevent any discrimination occurring,” the court explained.

Thus, it concluded that the employer had “illegally discriminated against Panazzolo on the basis of his disability” and awarded a sum of $44,000 as compensation to the worker.

Source: HCA Mag

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