In 2023 we wrote an article about the Queensland Industrial Relations Commission (QIRC) applying the workplace health and safety exemption under section 108 of the Anti-Discrimination Act 1991 (Qld) (AD Act).
This year, in Medwell-Everett v Daltug Pty Ltd & Ashworth [2024] QIRC 2, the QIRC dismissed a discrimination complaint again applying section 108 and also finding that, the worker was unable to meet the genuine occupational requirements of their role because of their injury.
Background
The worker was employed at Daltug Pty Ltd initially as a general purpose hand, working on tugboats.
On 24 July 2021 the worker ruptured his Achilles tendon outside of work and was unable to commence a new permanent position on 17 August 2021. On 7 October 2021, the worker advised Daltug that he had been verbally cleared to return to full duties.
Daltug requested the worker undergo a full fitness capacity test prior to returning.
The fitness test report confirmed the worker was fit to commence work, however this opinion was formed by reference to the worker being employed as a ‘Tug Master’, a less demanding role then the general purpose hand.
Daltug was concerned the fitness report could not be relied on where it failed to consider the worker’s specific duties and requested the worker be reassessed. The assessing physician advised that the worker may be required to stop work and sit down if any twinge or other event were experienced, and that there was no guarantee that re-injury would not occur given the physically demanding duties of his role as a general purpose hand.
Following this report, Daltug notified the worker it could not reinstate him where:
- it would be unsafe due to a risk of reinjury;
- operational requirements would not enable Daltug to make the necessary adjustments to accommodate the injury.
The Complaint
The worker made a complaint to the Queensland Human Rights Commission, which was subsequently referred to the QIRC, alleging unlawfully discriminated on the basis of his injury in contravention of the AD Act.
Daltug relied, amongst other things, on section 108, being an exemption available where an act is reasonably necessary to protect the health and safety of people at a place of work, and further argued it was exempt from a finding of unlawful discrimination on the basis that the worker could not meet the genuine occupational requirements for a general purpose hand under section 25(1) of the AD Act.
Findings
Commissioner Pidgeon accepted the employer’s submissions that the worker’s role was more demanding than the role the subject of the initial fitness assessment, and that decision not to reinstate was based on the genuine requirements of the role and workplace health and safety. The QIRC accepted that the employer must have regard to a range of information, not just a medical report in isolation, when considering whether an worker can safely perform their duties and/or whether any reasonable accommodation can be made.
Takeaway
Whether a worker suffers an injury at or outside of work, there are obligations on an employer to be considered in respect of their return to work. Employers must ensure their directions in relation to obtaining relevant information are reasonable and lawful and that any decision that might be adverse to a worker’s interests is properly supported. If in doubt, always seek advice.
Source: Mondaq
