Is it discrimination? Worker not allowed to return to work after injury

The Queensland Industrial Relations Commission recently dealt with a worker’s discrimination claim, alleging that he suffered bias after he failed to return to work after an injury.

The worker, Brad Medwell-Everett, alleged that Daltug Pty Ltd and its former general manager, Scott Ashworth, discriminated against him by deeming him unfit to return to work after an injury sustained outside of work.

According to the worker, he had a full medical clearance to resume work, and the employer’s decision not to allow him back was discriminatory based on his impairment. Additionally, he claims victimisation for raising concerns about discrimination.

Meanwhile, Daltug Pty Ltd and Ashworth assert that it was reasonable to expect the worker to fulfill the inherent occupational requirements of the job.

They expressed concern about the medical clearance provided, stating that, after consulting with the doctor, they deemed it unsafe for the worker to return at that time.

The employer also argued that no reasonable adjustments were available, and their actions were necessary to protect the health and safety of all employees.

The workplace injury

The worker joined Daltug in October 2019 and, on July 5, 2021, was offered full-time permanent employment, which he accepted.

The injury occurred on July 24, 2021, when he ruptured his Achilles tendon. He was unable to start the permanent position on August 17, and his return date was extended until September 14.

While he indicated readiness to return on October 7, the employer arranged a full fitness capacity test for October 11.

The test results, presented during the hearing, indicated that he was fit to work, with recommendations for continued physiotherapy.

However, concerns arose about his fitness, leading to communication between Daltug’s safety officer and his doctor. The employer expressed reservations about his role and sought further information.

Despite the worker’s efforts to clarify his fitness, the employer continued to express concerns and requested additional physiotherapy.

The dispute escalated, involving the Maritime Union of Australia in January 2022. He then filed a complaint with the Queensland Human Rights Commission, which was later referred to the Queensland Industrial Relations Commission.

He alleged direct discrimination based on impairment and victimisation. He sought various orders, including compensation for lost wages and damages for pain and suffering.

What constitutes ‘discrimination’?

The Commission explained that under the Anti-Discrimination Act, “discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:

  • (a) a characteristic that a person with any of the attributes generally has; or
  • (b) a characteristic that is often imputed to a person with any of the attributes; or
  • (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  • (d) an attribute that a person had, even if the person did not have it at the time of the discrimination.”

It then gave an example of paragraph (c):

“If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.”

“For direct discrimination to occur, Medwell-Everett must have been treated less favourably than another person without the protected attribute would have been treated, in circumstances that were the same and not materially different,” the Commission said.

The worker said that “as a result of a perception that the Achilles tendon injury had led to a loss of function, even after [he] had received medical clearance, Daltug employees treated [him] less favourably than a co-worker who was offered a full-time position at the same time as [him], and who was given the position because he had not been perceived as suffering from an impairment.”

Was the worker discriminated against?

The Commission found that the employer decided at the time of the worker’s medical assessment that he “could not safely return to work on the basis of risk of reinjury.”

It also said that the employer faced “the financial risk of Daltug being unable to complete an assignment should Medwell-Everett become injured.”

Thus, it said that there “has been no direct discrimination against [him] on the basis of his impairment and that he was not treated less favourably than a comparator without the attribute in circumstances that are the same or not materially different.”

“It was open to Daltug and Ashworth to impose genuine occupational requirements requiring fitness to undertake the position and that this genuine occupational requirement provides an exemption for discrimination.”

“Further, it was open to Daltug to act as reasonably necessary to protect the health and safety of people at work and it is not unlawful to discriminate on that basis,” it added. Thus, the Commission said that the worker was not discriminated and the employer’s decision to not allow him to return to work was valid.

Source: HCA Mag

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