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Friday Workplace Briefing

Disability Discrimination and Reasonable Adjustments – A Case That Sounds Alarm Bells

In this week’s Friday Workplace Briefing, Andrew Douglas will be discussing disability discrimination and reasonable adjustments in the workplace.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: All right, our main topic and really in our education sector. And I ran into one of our friends today from Yarra Valley Grammar. So hi. And the coffee was good for me too.

This is about disability discrimination, particularly in the education area. And can I say to you, it applies throughout all workplaces and it comes from a high court decision. In this case, this was a teacher at the Blackburn English Language School. He had suffered a stroke in his spine, which was un-work related. Two years after he had made some recovery. And his doctor wrote to the school with a return to work programme saying, look, he can return to working a few days a week, four hours a day in an observational role. And as a teacher’s hand and over a period of time can possibly return to full-time work.

There is no evidence in this case that they would never be able to return to full-time work. Nor is there any evidence that he definitely would be able to return to full-time work. The principal relied on a past medical report prior to this saying he’s totally unfit for work and also said, look, what adjustments can we make because of the disability the teacher had at that time.

Can I just say at this stage, any lawyer practising in this area would’ve said a two year absence and a lack of clarity around final capacity would’ve made any argument of discrimination law based on disability incredibly unlikely to succeed. Well, it did succeed and it succeeded because what the court said is when you look at what reasonable adjustments were, you look at what is the cost, what is the impact on other teachers or other people involved? How practical is it?

Those adjustments were reasonable that were being offered to be made and there was no evidence that he would not be able to return to full-time work. I’ve got to tell you, this is a really concerning judgement , okay? And it’s concerning judgement for a number of reasons. And that is, this was not a workplace injury. There was no obligations to return to work in the classic sense of a workers’ compensation claim and an absence of this period of time places such a financial and structural burden on a business. It’s not reasonable. If it is appealed, I suspect the appeal will be successful. But it does show you what the risks are around disability discrimination as they sit now. And the law is at large.

We’ve probably dealt with half a dozen cases like this over the last five or six months. And candidly, all of us worry about what are reasonable expectations around non-work-related injuries of a prolonged absence. This case I think is stretching it too far, but we’ll wait and see, we’ll see if it’s appealed. Unfortunately, discrimination claims are rarely appealed. That’s ’cause they do such significant brand damage in any appeal process. But wait and see, watch this space.

All right, let’s go to the next one. Here we are, here is the case study. Okay, and I don’t normally read these and I have a very little voice so you’re going to have to tolerate me having a few drinks in between.

Angus was a theatre technician at Yandoit Regional Hospital (YRH). He completed the shift at 11:00 PM on 2 June, 2023. His boss, Olga, on the afternoon shift, asked how he’s going to get home and he said he was driving. Olga said, be careful, it is a Saturday night and you need to be careful of the drunks.

Sage advice, I would’ve thought.

Olga was aware of the standard work order referred to below and was a health and safety representative involved in reporting risks regarding safety issues of staff to get to the carpark from the hospital on afternoon and night shifts.

The staff carpark was down a lane a hundred metres from the back door of the hospital. The lane was a public lane used by local residents. There was a standard work order for afternoon and night shift employees to bunch together to be escorted to the car park by security. That was because there had been numerous instances of staff being attacked in the lane way by drunks as the end of the lane connected to the back door of the local pub in the main street.

It was Angus’ first afternoon shift. He had not been trained about the work order and no one had told him. He walked past several employees milling around at the back door, one of whom said, why don’t you wait for us? Angus laughed and said, the Missus is waiting. And they laughed.

The safety reports the executive and board highlighted there had been two sexual assaults and one serious physical assault along with numerous threats and other scary confrontations over the prior 12 months and the CEO had hired security guards to escort staff. They had petitioned the local counsel for improving lighting and to close the lane.

There had been an additional attempted sexual assault following the hiring of security when a nurse unaware of the work order rushed to get home to her children, ran down the lane and was confronted by a drunken criminal. She managed to elude him and run back to the hospital, but the assailant had grabbed at her clothes and tried to touch her inappropriately while saying vile comments about his intentions.

Both the CEO and the board had been told by police that the use of the lane was a risk. The lane was dark and they couldn’t commit to being present when staff left on afternoon and night shift and arrived on day shift. On the way to the car park, halfway down the dark lane, no lights on the lane, three drunken men jumped Angus, started punching and kicking him and as he fell to the ground, he hit his head on an exposed drainage pipe causing his instant death. At the time of the fatal assault of Angus, the council had not improved lighting nor closed the lane.

There you go. There’s the facts. All right, let me have a sip.

Had Angus survived, and also this is a question under the Wrongs Act. If the claim was made by the family for dependency in the event of death, was Angus at work for the purpose of workers’ compensation and common law damages? So pretty important question, isn’t it?

He had left work, there was a staff car park. Right, let’s go back to our workers’ comp case that with the Ben Yole case that we talked about just earlier, clearly there was an expectation from the hospital that for a person to get to the car park they would have to walk there. So unquestionably for the purpose of workers’ compensation, therefore the Wrongs Act, this was part of his working duties and therefore the death benefits claim under the Wrongs Act and the workers’ compensation claim, if he didn’t die, would’ve been well-founded and there would’ve been no concerns about the interval that arose between leaving the back door of the hospital and attending the car park.

Can I say this is a huge issue because there are common expectations. This isn’t a journey claim issue. There are common expectations for a number of us. Like I leave here, and I go to a car park, which is a block and a half away. It is on the edge of Chinatown. When I go there, it is not uncommon for people to be drunk and drug affected that I pass when I leave late at night. A real concern.

In my past firm, one young lawyer was punched when and our office was one block down from King Street, late on a Friday night. The obligation arises quite clearly to provide layers of protection and education around those issues.

Next question. Was it a workplace for the purposes of safety law and does it have to be? Right, different issue, isn’t it? Because the definition of a workplace under safety law is more confined than it is under workers’ compensation. But once again, given the fact that work provide a place to park your car, therefore invested a cost in providing you a place to park your car under safety law, it would be a workplace.

If the mistake, if I was wrong about that. Okay, so I think that’s a good argument under safety law, but maybe not a winning argument. But if a regulator charged the hospital and the CEO with workplace manslaughter in Victoria or industrial manslaughter as there’s no one elsewhere, then the fact that death arose outside of a workplace doesn’t change the entitlement to bring the indictment. It’s a pretty important thing because for every other charge, right up to reckless endangerment, it must be a death that occurred on a workplace. Okay?

But I think because the carpark is provided by the hospital and there is an expectation by the hospital that workers will use the carpark and there’s one owned and provided by the hospital, it’s probably a workplace for safety law. Once again, I hope people are hearing alarm bells. We’ve written this case study to highlight what this area of risk is.

What actions should have the hospital taken, which is question three. Well, unquestionably they should not have allowed workers under any circumstances to travel down that lane and found an alternative route or placed a carpark in a different way. They should have without a doubt, if they were using security guards have a security guard located in the lane.

If that was the only means of access and that security guard or security guards would’ve ensured that people were appropriately supervised down the lane and they should have ensured there was appropriate lighting in the lane.

Finally, and if we go back to the Visy case, they had to make sure that everybody was trained and competent and aware of the work order in relation to travelling down that lane.

But this is a structural issue of risk. If you can’t fix the problem. Let’s go back to reasonable practicability. If the obligation of the employer is to do everything that is reasonably practical, they have to identify the hazard. The hazard is people are in a dark lane tripping over in the lane and hurting themself.

If Angus had tripped over and hit his head on the pipe, he would’ve died anyway. So big risk, but also being attacked given the proximity of the hotel and the time at which people were there. There is a high likelihood would people would be attacked. So the risk was not high, it was severe. So was there a hazard? Yes. What were the hazards? Lack of lighting, the presence of dangerous people, the presence of dangerous infrastructure like exuding pipes. So the risk is extreme.

What is the control? What this council, so what this hospital did was say, we’ve asked the council, we’ve created a work order. After that we can’t be responsible. What absolute rubbish. When the risk is severe, if you can’t provide an appropriate control, you have to stop it. What they should have done here, unquestionably, if they couldn’t control it is stop the use of the car park. That’s what they should have done. So when we face, could Olga face disciplinary action, what’s Olga’s obligation? Well, she’s an employee, not an officer. So her obligation is to exercise reasonable care to prevent injury to herself or others. So what’s reasonable care? A competent person doing her job, her obligations in HSR are indemnified. She has no liability under the act in respect of her HSR obligations.

But her obligations, an employee seized with the knowledge she had was to ensure that Angus had the knowledge he needed to be as safe as possible. So she’s in breach of section 25.

What about disciplinary charges? Well, yes, she was aware of a lawful and reasonable direction. If we go to regulation 1.7 of the fair work regulations, a failure to comply with the lawful and reasonable direction is serious misconduct, she most definitely faces disciplinary consequences. Given the fact of the death. Given the breach that occurred, it’s likely that would be a final warning, not termination or did give some sort of hint of the risk that was involved. Could the CEO be charged and if so, under what provision? I think the CEO is looking squarely at reckless endangerment. Could be industrial manslaughter. Let’s try industrial manslaughter.

What are the elements that, there was Angus’s death. So there’s one. Two, the CEO had a duty of care section 144 as exists in all due diligence provisions, but an objective test in every other state. But Victoria, where it is subjective. He subjectively knew of the risk. He took actions knowing his duty to take those actions to try and mitigate that risk. But his failure was gross. His failure was, I know this risk is alive now. I know it is ongoing. I even know after I gave a direction that there has been another one and I’ve done nothing really to prevent that from occurring. I think a regulator may charge him with workplace manslaughter in Victoria, industrial manslaughter elsewhere, but would likely drop that back to reckless endangerment. But he would not escape a reckless endangerment charge.

Why? ‘Cause the test in reckless endangerment is very straightforward. Is there a knowledge of serious risk of injury? Absolutely. So they had the knowledge of what was those risks, what were the hazards and the risks that went with it? Was the CEO indifferent to those risks? Yeah, he did some things about it. But that doesn’t change a carelessness or indifference. It is to do the right thing and he clearly didn’t do the right thing. He’s highly exposed. And given the attitude of courts, he’s likely to face a prison term to resolve that although it may be one that’s suspended. Could the board be charged and if so, under what provision? Yes. Once again, if there was industrial manslaughter, the board would have a liability. I don’t think there’s a lot of information which would give the board a huge amount of risk at the moment. Particularly because regulators are only prosecuting officers who were involved in this particular breach.

But there is a risk to the board for both reckless endangerment, section 144, primary duty breach and industrial manslaughter. I think it’s unlikely.

What would the hospital be charged with? The answer is they would be charged with exactly the same thing that the CEO was charged with because they are attributed with the CEO’s action. So if the CEO was charged with industrial manslaughter, so would the hospital be. If he was charged with reckless endangerment, so would the hospital. What would the penalty likely be in these cases given the most recent case that I just gave you? You’d have to expect they’d be at risk of something in the vicinity of one and a half to $2 million.

There you go guys. That’s it for this week. Now I want you to remember we are running the workers’ compensation breakfast. You are going to get something on it really shortly.

I do need your thumbs up today ’cause I feel really lonely. The koala feels incredibly lonely. Thanks for watching. Cheers.

Check this next

Andrew Douglas and Nina Hoang will be discussing how out of hours conduct is understood in recent case law, when that conduct can affect your employment and how employers should address it.