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The Collision Between Safety and Equal Opportunity

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The medical officer conducting the examination must understand the 'inherent ... B declined to undertake medical examination on the basis that his reinstatement ... – PowerPoint PPT presentation

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Title: The Collision Between Safety and Equal Opportunity


1
The Collision Between Safety and Equal
Opportunity
Nicholas Ellery, Partner 21 August 2003
168539
2
Focus on Disability Discrimination
  • When is compliance with OSH obligations a
    defence to non-compliance with anti-discrimination
    laws?
  • Accommodation of employees disabilities - how
    far must you go?
  • When is this an issue? - Medical examinations
  • pre-employment medical checks
  • medical examinations of existing employees

3
Myriad of Obligations
  • OSH obligations
  • Anti-discrimination laws (state and federal)
  • Unfair and unlawful termination laws
  • Privacy laws

4
Federal Act
  • Disability Discrimination Act (Cth) renders it
    unlawful to discrimination against a person with
    a disability when deciding
  • who should be offered work
  • the terms and conditions of work
  • dismissing an employee
  • subjecting the employee to any other detriment

5
Federal Act
  • Exceptions
  • If, taking into account all relevant factors it
    is reasonable to take into account, the person,
    because of the disability would
  • be unable to carry out the inherent requirements
    of the job or
  • to be able to carry out the job, require services
    and facilities not required by others, the
    provision of which would impose an unjustifiable
    hardship on the employer (s15(4)).
  • if the discrimination results from compliance
    with a requirement of another Act (s47)

6
State Act
  • Equal Opportunity Act (State)
  • It is unlawful to discriminate against a person
    with an impairment when deciding
  • who should be offered work
  • the terms and conditions of work
  • dismissing an employee
  • subjecting the employee to any other detriment
    (s66B)

7
State Act
  • Exceptions
  • If it is reasonable for the employer to conclude
    that, because of the impairment
  • the person would be unable to carry out the work
    required or
  • services and facilities not required for others
    would be required
  • If something is done in compliance with another
    Act (s69(1))

8
State v Federal
  • Complainant can choose which jurisdiction
  • Exceptions in Federal Act harder for employer to
    access
  • State legislation has cap on damages - 40,000
  • Inconsistency
  • If federal proceedings are not successful, can
    access state laws, but not vice versa.

9
OHS Legislation
  • OHS legislation requires employers to ensure the
    health, safety and welfare at work of all
    employees.
  • So, when will these OHS considerations override
    anti-discrimination obligations?

10
When will this arise?
  • Medical examinations, either
  • pre-employment medical checks
  • medical examinations of existing employees

11
Pre-Employment
  • Employers may wish to conduct pre-employment
    medical checks for a number of reasons
  • where the employee discloses a medical condition
    or other illness or disability
  • where the work to be performed involves high risk
    of physical injury

12
Pre-Employment
  • Can an employer use information obtained in a
    pre-employment medical to refuse to employ
    someone?
  • The answer is yes, subject to
  • Privacy Act requirements
  • anti-discrimination legislation
  • occupational safety and health laws

13
Prospective Employees
  • An employer can only collect medical information
    about a prospective employee that is necessary to
    determine the suitability of the applicant for
    the position of employment
  • The information must be collected from the
    prospective employee or from a third party with
    the prospective employees consent
  • Consent must also be given to pass the
    information on to relevant agencies or health
    professionals

14
Pre-Employment Medicals - Procedure
  • Medical examinations must be conducted in
    accordance with contemporary anti-discrimination
    laws and practice
  • Where an employer is considering whether or not
    to engage a prospective employee it is necessary
    for the prospective employees medical
    information to be analysed by reference to the
    inherent requirements of the position
  • The medical officer conducting the examination
    must understand the inherent requirements of
    the position and the capacities required to
    perform the position, as well as being aware of
    anti-discrimination laws

15
Gehrig v McArthur Mining
  • Gehrig v McArthur River Mining Pty Ltd (1997) EOC
    92-872
  • Mining company was ordered by the Northern
    Territory Anti-Discrimination Commissioner to pay
    14,000 to an occupational nurse denied a job
    based on a pre-employment medical assessment
  • Nurse held a temporary placement at the minesite
    before she applied for a permanent position and
    was required to undergo a medical examination

16
Gehrig v McArthur Mining
  • Medical centre advised the Mining company that
    she would not be able to carry out duties because
    of previous history of back pain
  • Commissioner found it was unreasonable for the
    Mining company to rely solely on pre-employment
    medical - must take into account all matters
    relevant to the employment application on a
    non-discriminatory basis

17
Gehrig v McArthur Mining
  • It was found that the Mining company had failed
    to
  • consider nurses past employment
  • recognise that medical examination was done
    without reference to a detailed job description
  • take steps to make sure that Medical Centre was
    aware of relevant anti-discrimination laws

18
Lesson
  • This case shows that an employer cannot delegate
    the decision-making regarding an employees
    ability to perform the duties of the position to
    a doctor (or anyone else)

19
Pre-Employment Medical - Discriminatory
  • Airflite Pty Ltd v Goyal 2003 WASCA 45
  • Employee refused a position as a aircraft handler
    due to medical evidence of a previous wrist
    injury, a stiff lumbar spine, weak abdominal
    muscles, possible hernia, low lung function,
    potentially high blood pressure and poor eyesight
  • Employer said it had a duty of care and an OHS
    obligation
  • The employee obtained specialist medical evidence
    that he was fit to work as an aircraft handler

20
Pre-Employment Medical - Discriminatory
  • Goyal case cont...
  • The tribunal found that the employee had been
    treated less favourably
  • There is no legal requirement that the employee
    be able to carry out the work without risk of
    injury
  • Mere reliance on the opinion of a medical
    practitioner is not sufficient especially where
    no attempt has been made to ensure that the
    practitioner is applying appropriate and
    non-discriminatory methods of assessing
    applicants

21
Pre-Employment Medical - Discriminatory
  • Goyal case cont...
  • Employer applied the wrong test when it refused
    employment
  • Should have considered whether Goyal was unable
    to carry out the work reasonably required
  • Instead, considered what it should do to minimise
    its safety risks.

22
Unable to Perform Inherent Requirements
  • Perlidis v Brambles Security Services Ltd t/as
    Brambles Armoured 2003 NSWADT 11 (2003) EOC
    93-264
  • P began work as a security guard in a car crew
    transporting cash weighing up to 42kg.
  • In May 1990, P injured his back at work and on
    his return to work commenced light duties. P was
    not rostered on for overtime work.
  • By February 1996, P could only lift 29kg and
    Brambles terminated his employment because after
    rehabilitation there was no certain prognosis for
    future return to work.

23
Perlidis v Brambles - Issues
  • The following issues were raised before the ADT
  • whether an overtime restriction imposed on P
    constituted unlawful discrimination
  • whether P was able to carry out the inherent
    requirements of his position, with or without
    provision of services/facilities by Brambles
  • whether Brambles could rely on the defence of
    compliance with another Act (OHS Act) in
    defending its decision to dismiss P

24
Perlidis v Brambles - Findings
  • ADT found that Brambles, in restricting Ps
    overtime hours, was subjecting P to less
    favourable treatment on the grounds of his
    disability
  • Was a defence established on grounds of OHS
    compliance?
  • ADT noted that unlawful actions will not be
    exonerated automatically by virtue of compliance
    with another law. Distinction must be drawn
    between those cases where it is necessary to
    discriminate, and those where there are
    alternatives which would ensure compliance with
    the OHS Act, but where the employer still chooses
    to discriminate.

25
Perlidis v Brambles - Inherent Requirements
  • ADT held that Ps position required him to lift
    weights of more than 29kg and that at the date of
    his dismissal he was unable to do that
  • P was unable to meet the inherent requirements of
    his position
  • However, it was found that Brambles had not given
    any consideration to potential assistance, and it
    had not established that such assistance would
    have imposed an unjustifiable hardship on it

26
Perlidis v Brambles -OHS as a Defence
  • Brambles argued that the unlawful discrimination
    was rendered lawful by its compliance with OHS
    law
  • ADT considered that whether or not Ps continued
    employment constituted a risk to his safety, or
    that of his workmates, depended on
  • the nature of the employment
  • the nature and duration of the disability
  • whether any assistance could be provided that
    would allow the employee to carry out their
    duties safely

27
Perlidis v Brambles
  • According to the ADT, Brambles should have
    considered whether P could have been provided
    with assistance to carry out his duties and/or
    explore alternative ways in which that work was
    carried out. As it failed to do so, Brambles was
    unable to rely on s54 as a defence.
  • This decision can be contrasted with Cosma v
    Qantas Airways Ltd 2002 FCA 640 (appealed to
    Full Federal Court, appeal dismissed).

28
Cosma v Qantas
  • C was employed by Qantas as a porter in ramp
    services. This involved removing baggage and
    cargo from aircraft with other gang members.
    Tasks were rotated between members.
  • C injured his shoulder at work in 1991. On his
    return to work he performed clerical duties as he
    was not fit enough to work as a porter.
  • C was terminated in 1997. As at that date, he was
    still unfit to return to his pre-injury position.

29
Cosma v Qantas - Questions
  • Heerey J answered the following questions to
    determine whether C had been unlawfully
    terminated
  • what was Cs particular employment at the time of
    the discrimination?
  • what were the inherent requirements of that
    particular position?
  • was C unable, because of his disability, to carry
    out the inherent requirements of his position?

30
Cosma v Qantas - Questions (contd)
  • if yes, what services or facilities not required
    for persons without the disability would the
    applicant have required to carry out of those
    inherent requirements?
  • would the provision of such service or facilities
    impose an unjustifiable hardship on Qantas?

31
Cosma v Qantas - Findings
  • Heerey J found that
  • Cs particular employment at the time of the
    discrimination was porter in ramp services. It
    was affirmed on appeal that the appropriate
    position that must be analysed is the position
    the employee held prior to the injury/disability
  • the inherent requirements of Cs position as
    porter included manual handling of luggage, as a
    member of a team, and various associated
    physical duties

32
Cosma v Qantas - Findings (contd)
  • C was unable, because of his disability, to carry
    out the inherent requirements of his position as
    porter.
  • in considering the services and facilities which
    could be provided by the employer, an employer
    was not required to alter the nature of the
    particular employment or its inherent
    requirements. The services or facilities are
    external to the particular employment which
    remains the same.

33
Testing Fitness for Duty
  • The decision of Madgwick J in Blackadder v Ramsey
    Butchering Services Pty Ltd (appealed on
    reinstatement issue) dealt with fitness for duty
    issues.
  • B was reinstated following a successful unfair
    dismissal application. Ramsey advised B that
    although he was reinstated he would not be
    required to report to work until he attended a
    medical examination.
  • Ramsey was concerned as to the physical capacity
    of B to perform certain duties and the potential
    health and safety risks.

34
Blackadder v Ramsey
  • B declined to undertake medical examination on
    the basis that his reinstatement was not
    conditional
  • Because of this refusal, B intermittently did not
    receive wages, or was directed to use accrued
    leave until he attended the medical examination

35
Blackadder v Ramsey - OHS Findings
  • Madgwick J found that
  • it is essential for compliance with OHS duties
    that an employer be able, where necessary, to
    require an employee to furnish particulars and/or
    medical evidence regarding fitness for duty
  • it was not unreasonable in this case for B to
    refuse the medical examination where no bona fide
    concern for his, or any other employees, safety
    had been substantiated by the employer
  • it was not appropriate for Ramsey to refuse to
    pay wages in these circumstances

36
Pre-Employment Medical Testing - Best Practice
  • HREOC recommends that the following practices be
    adopted
  • medical examiner to have the job specification so
    recommendations made relate specifically to job
  • only information relevant to the position should
    be sought
  • where there is a concern, examiners should seek
    advice and assessment from vocational specialists
  • strict confidentiality should be ensured
  • applicants to be advised of results

37
Conclusion
  • Pre-employment medicals should always focus on
    whether the prospective employee is capable of
    fulfilling the inherent requirements of the
    position
  • The OHS defence to unlawful discrimination may
    not be successful if the employer hasnt
    considered alternative ways for work to be
    carried out
  • Bona fide concerns as to an employees fitness
    for duty may warrant medical examinations for OHS
    reasons

38
Conclusion...
  • Remember the provisions of the Workplace
    Relations Act relating to unlawful termination
    and unfair dismissal still apply
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