Reasonable Adjustment: The disability to discriminate lawfully

“It takes an open-minded individual to look beyond a disability, and see, that ability has so much more to offer than the limitations society tries to place upon them.” — Robert M. Hensel

Injuries or disability outside of work — whose responsibility?

If an employee is injured in the course of their employment, the path forward is relatively clear: workers’ compensation legislation enacted across the Commonwealth and all its States and Territories provide a mechanism for the employees to be compensated, and a statutory program to manage their rehabilitation and return to work.

The situation is different for an employee who becomes injured or acquires a disease in circumstances unrelated to their employment, and that injury or disease affects their ability to satisfactorily carry out their duties.

What then is the employer obligated to do; where lies the legal tipping point on the balance beam between mandated compassion, and permitted self-interest?

Putting the human element to one side, such circumstances present obvious practical difficulties for the employer — they will likely want to minimise the time, costs, and risks inherent in making “adjustments” for the injured employee, whilst ensuring they do not take any action that might open them up to an expensive lawsuit under the Disability Discrimination Act 1992 (Cth) (DDA).

Yet for the employee, the consequences are certainly graver. Not only do they have to deal with the physical and emotional burdens of the injury itself, but also with the risk that they may lose their livelihood because of it. Read more.

By John Wilson, Managing Legal Director, Employment Law, and Kieran Pender.

First published in Ethos, the ACT Law Society’s journal.