July 2015
Practice Group:
Labour Employment
and Workplace Safety
The Danger of Assumptions When Dealing With Ill
and Injured Employees
Australia, Labour Employment and Workplace Safety Alert
By Christa Lenard and Jessamy Kenny
A recent decision made by the Federal Circuit Court (Court) provides a timely reminder of
the need to take care when making decisions about the ongoing employment and duties
of ill and injured employees. The decision also highlights the difficulties in balancing
operational requirements and reasonable adjustments for employees with disabilities.
Huntley v State of NSW, Department of Police and Justice (Corrective
Services NSW) [2015] FCCA 182
Facts
Ms. Caryn Huntley was a Probation and Parole Officer with Corrective Services New
South Wales when she was diagnosed with Crohn's disease. Her illness necessitated
ready access to toilet facilities and limited her ability to travel long distances. Following a
period of personal leave, her duties were informally adjusted to avoid the need for her to
perform field work, but after approximately six months she was informed that these
arrangements could not continue because of operational constraints.
For a period, Ms. Huntley performed a secondment in another department, but this was
not extended as a result of concerns about Ms. Huntley's excessive sick leave and
restricted ability to travel long distances. Around this time she was also diagnosed with a
sleep disorder and was then placed on a period of forced personal leave.
Ms. Huntley brought a claim against her employer for, amongst other things, unlawful
discrimination in breach of the Disability Discrimination Act 1992 (Cth) (DDA).
Decision – Breach of the DDA
The key question in the case was whether the employer had taken appropriate steps to
make (or made appropriate enquiries about making) reasonable adjustments to allow Ms.
Huntley to perform her substantive role.
Critical to the Court's conclusion that the employer had breached the DDA by failing to
make reasonable adjustments were the judge's findings that:
• the informal adjustments to Ms. Huntley's duties were implemented without her having
been consulted on the changes and ended without adequate explanation as to why
they could no longer be accommodated
• no relevant person within the employer had turned their minds to the inherent
requirements of Ms. Huntley's role nor the reasonable adjustments that would have
been required to enable her to fulfil her role
• the conclusion by management that Ms. Huntley was unable to take trips longer than
30 minutes was a misinterpretation of medical advice
The Danger of Assumptions When Dealing With Ill and Injured Employees
• Ms. Huntley was able to work in a 'full-time office position' capacity, and assumptions
by her managers that she was unfit to do so were contrary to the medical evidence
• Ms. Huntley was placed on forced sick leave, despite medical evidence that she was
fit for work.
The Court found that whilst the employer did take steps to assist Ms. Huntley in applying
for alternative positions and brought to her attention a number of vacancies, this process
was flawed as a result of assumptions about Ms. Huntley's capabilities and a lack of
consultation with her.
Ultimately, the employer was unable to establish that Ms. Huntley could not meet the
inherent requirements of her position, even with reasonable adjustments.
Decision – Breach of Contract
Interestingly, the Court found that as a result of the conduct said to constitute
discrimination against Ms. Huntley, the employer had breached the following implied
terms in Ms. Huntley's contract of employment:
• trust and confidence between the parties
• safe work
• good faith
• the obligation to make reasonable adjustments
• the employer would not act inconsistently with its policies.
There was little consideration given in the judgment as to the basis for the judge's
findings that these terms were implied into Ms. Huntley's employment contract. Given
recent developments in case law around this area of the law, the wider applicability of
this finding remains to be seen. If the decision is accepted as good law, it could
potentially have wide ranging ramifications for the liability of employers in respect of their
treatment of ill and injured employees. This is particularly relevant in the context of public
sector employees, the terms of whose employment are also subject to much broader
obligations under public sector legislation, policies and procedures.
Damages
Ms. Huntley was awarded damages of more than AUD180,000 plus interest. This amount
included compensation for:
•
pain and suffering, and breach of contract in the amount of AUD75,000
•
loss of wages, leave entitlements, superannuation, psychologist costs and loss
of promotion opportunities in the amount of AUD98,863.89.
The damages for non-economic loss arose out of a finding that the employer's conduct
had contributed to a psychological injury in Ms. Huntley, despite the fact that this
condition had, to a certain extent, been pre-existing.
Lessons Learned
Employers are reminded that a failure to make reasonable adjustments for employees
with disabilities is a ground for unlawful discrimination in and of itself.
What will be sufficient to meet an organisation's obligation to provide reasonable
adjustments will depend on the circumstances of the case. However, it is important to
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The Danger of Assumptions When Dealing With Ill and Injured Employees
obtain reliable medical evidence to guide decision making in relation to ill and injured
employees. In assessing the reliability of medical evidence, employers should consider
the following questions:
• Does the medical evidence come from an appropriate area of medical specialisation?
• Does the medical evidence address all issues adequately?
• Is the medical evidence up to date?
In dealing with ill and injured employees, employers should seek appropriate legal advice
and ensure they:
• take steps to proactively deal with absences before they become long term
• do not make assumptions about fitness for work, but rather seek medical opinions and
the input of the relevant employee
• genuinely consider the reasonableness of suggested adjustments and clearly
articulate why a proposed adjustment is unreasonable and would cause unjustifiable
hardship
• be clear about what the inherent requirements of an employee's position are and the
extent to which their fulfilment is limited by the employee's illness or injury. To this end
employers should, where appropriate, aim to develop comprehensive and targeted job
descriptions.
K&L Gates Wake Up Breakfast Briefing
K&L Gates is hosting a Wake Up Breakfast Briefing this month which will be discussing
issues relating to the management of ill and injured employees, specifically with regard to
mental health in the workplace. The dates for this event are:
Melbourne: 22 July 2015
Sydney: 29 July 2015
This is a free event. If you are interested in attending, please click here to RSVP.
Authors:
Christa Lenard
Jessamy Kenny
Partner
christa.lenard@klgates.com
+61.2.9513.2445
Lawyer
jessamy.kenny@klgates.com
+61.7.3233.1204
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The Danger of Assumptions When Dealing With Ill and Injured Employees
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