When is discrimination against an employee justified?


When it comes to discrimination against a candidate, employers need to understand subtle definitions in general protections cases, or risk being caught between two Acts.

A recent federal court case highlights the differences between the Fair Work Act (FWA) and the Disability Discrimination Act (DDA) when deciding if a worker can perform the “inherent requirements” of the job in the context of workplace discrimination claims.

Employers who don’t understand the differences may find themselves with no defence if they are found to have discriminated against an employee.

The federal court case, Shizas v Commissioner of Police, involved a general protections (GP) claim against the Australian Federal Police. They had rejected a candidate’s job application twice due to his arthritic condition – the first refusal breached the FWA as the AFP failed to produce any evidence about who decided to reject the application and why, and therefore could not prove the decision was not unlawfully discriminatory.

But the Court accepted the second refusal, finding it reflected the decision maker’s “genuine belief” that the candidate was an injury risk and unable to perform the “inherent requirements” of the job. The case was dismissed.  

While the Court accepted that the AFP’s belief about the employee’s capacity was probably mistakenly held, there was enough evidence of the belief itself, and that it was genuinely held, for the Court to uphold the “inherent requirements” defence.

When establishing an inherent requirements defence in a GP claim, courts are only concerned with whether the person who took the discriminatory action genuinely believed the individual could not perform the inherent requirements of the role – even if that belief is mistaken – and takes the action on that basis. In this case, the question was not whether the employee did or did not satisfy the inherent requirements of the role, but whether the decision to reject his application was made for that reason. But this is only relevant when defending a GP claim relating to discrimination under the FWA.

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When belief isn’t enough

In an interesting twist, if the applicant had claimed under the DDA the result may have been different – and may have been more difficult for the employer to defend.

Under the DDA, it doesn’t matter if an employer genuinely thinks your disability will put you in harm’s way. It needs to be established “in fact” that the person cannot perform the inherent requirements of the role. This means the employer’s subjective view about an applicant’s abilities doesn’t count. All that matters is whether the candidate can actually carry out the job’s “inherent requirements” – which is an objective test and will usually come down to medical evidence.

Employees making a discrimination claim against employers must also ensure they claim under the correct act, first time – you can’t make a claim under the FWA, lose, and then come back with a DDA claim.

The subtle differences between the defences in each Act create potential difficulties for employers – they need to understand their obligations and the limitations of defences under each.This case is a good reminder for organisations that when potential discrimination issues arise from decisions being made, both the general protections and discrimination frameworks need to be kept in mind.

Employers must also ensure decisions are carefully documented, as different considerations need to be considered to avoid liability.

Kerryn Tredwell is a partner at Hall & Wilcox

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When is discrimination against an employee justified?


When it comes to discrimination against a candidate, employers need to understand subtle definitions in general protections cases, or risk being caught between two Acts.

A recent federal court case highlights the differences between the Fair Work Act (FWA) and the Disability Discrimination Act (DDA) when deciding if a worker can perform the “inherent requirements” of the job in the context of workplace discrimination claims.

Employers who don’t understand the differences may find themselves with no defence if they are found to have discriminated against an employee.

The federal court case, Shizas v Commissioner of Police, involved a general protections (GP) claim against the Australian Federal Police. They had rejected a candidate’s job application twice due to his arthritic condition – the first refusal breached the FWA as the AFP failed to produce any evidence about who decided to reject the application and why, and therefore could not prove the decision was not unlawfully discriminatory.

But the Court accepted the second refusal, finding it reflected the decision maker’s “genuine belief” that the candidate was an injury risk and unable to perform the “inherent requirements” of the job. The case was dismissed.  

While the Court accepted that the AFP’s belief about the employee’s capacity was probably mistakenly held, there was enough evidence of the belief itself, and that it was genuinely held, for the Court to uphold the “inherent requirements” defence.

When establishing an inherent requirements defence in a GP claim, courts are only concerned with whether the person who took the discriminatory action genuinely believed the individual could not perform the inherent requirements of the role – even if that belief is mistaken – and takes the action on that basis. In this case, the question was not whether the employee did or did not satisfy the inherent requirements of the role, but whether the decision to reject his application was made for that reason. But this is only relevant when defending a GP claim relating to discrimination under the FWA.

(Enjoy the peace of mind that AHRI ProCover professional indemnity insurance brings, by becoming an AHRI member.)

When belief isn’t enough

In an interesting twist, if the applicant had claimed under the DDA the result may have been different – and may have been more difficult for the employer to defend.

Under the DDA, it doesn’t matter if an employer genuinely thinks your disability will put you in harm’s way. It needs to be established “in fact” that the person cannot perform the inherent requirements of the role. This means the employer’s subjective view about an applicant’s abilities doesn’t count. All that matters is whether the candidate can actually carry out the job’s “inherent requirements” – which is an objective test and will usually come down to medical evidence.

Employees making a discrimination claim against employers must also ensure they claim under the correct act, first time – you can’t make a claim under the FWA, lose, and then come back with a DDA claim.

The subtle differences between the defences in each Act create potential difficulties for employers – they need to understand their obligations and the limitations of defences under each.This case is a good reminder for organisations that when potential discrimination issues arise from decisions being made, both the general protections and discrimination frameworks need to be kept in mind.

Employers must also ensure decisions are carefully documented, as different considerations need to be considered to avoid liability.

Kerryn Tredwell is a partner at Hall & Wilcox

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