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Disproving discrimination: the role of evidence in fighting an adverse action claim

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This article was written by Amelia Blefari.

An employer has been cleared of adverse action claims because it was able to demonstrate that its decision not to employ a candidate was based on medical evidence relevant to whether the candidate could perform the inherent requirements of the particular position.

Implications for employers

To avoid falling foul of the adverse action prohibitions in the Fair Work Act 2009 (FW Act), employers should have proper evidence to support a refusal to employ a person with a disability due to the inherent requirements of the position. Medical evidence is of particular forensic relevance when considering a candidate's ability to fulfil the requirements of the position. Employers should be aware that a court will look closely at the reasons for refusing employment to any person with a disability and ensure there is documentation to support any decision relating to the inherent requirements of a position.

Background

The case concerned two refusals by the Australian Federal Police (AFP) to employ a candidate who lives with ankylosing spondylitis, a form of arthritis.

The first refusal was in March 2013, when the candidate was given a conditional offer of employment as an Agent Base Police Officer (ABPO) by the AFP. However, two days after making the conditional offer, the AFP revoked it on the basis that he had not met medical requirements. This was despite receiving a letter from the candidate's rheumatologist advising that there was "no restriction" on his ability to carry out job requirements of an ABPO, including the "use of force".

The AFP refused to reconsider the decision, informing the candidate that his condition was an excluded one under its medical standards. The candidate then lodged a complaint of disability discrimination with the Human Rights Commission.

The second refusal occurred in July 2014. This time, in response to the discrimination complaint, the Assistant Police Commissioner (the Commissioner) sought independent medical advice. The advice indicated that the candidate's condition meant he would have a "substantial" increased risk of injury in performing the role in question. Furthermore, injuries incurred were "likely to be more serious". On the basis of this advice, the Commissioner informed the candidate that the decision to refuse to employee candidate would not be revoked.

Decision

In respect of the first refusal, Justice Katzmann of the Federal Court found that the Commissioner had refused to employ the candidate because of his physical disability. The AFP failed to lead evidence to prove the decision was taken because of the candidate's inability to perform the inherent requirements of the position. The Court declared that the AFP took adverse action in contravention of section 351(1) of the FW Act.

The circumstances of the second refusal were different, since, in contrast to the first refusal, the AFP had the benefit of independent medical advice in making the decision. The question for the Court was whether the reason for refusal remained the candidate's physical disability, or whether the Commissioner could show employment was refused because of the candidate's inability to perform inherent requirements of the position of an ABPO. The Commissioner gave evidence that he was concerned (based on his experience) that the candidate would be "prone to injury".

Justice Katzmann noted that the medical evidence before the Court established that the candidate was not currently suffering symptoms, and in fact would not pose a greater risk of injury to himself or colleagues. However, the Commissioner had relied on the medical evidence sought by the AFP to infer that there was such a risk, and he was entitled to do so. Justice Katzmann noted that the fact this evidence had been sought "tells against the notion that he acted on the basis of a preconception rather than [the] actual circumstances".

Justice Katzmann noted that in cases where the evidence suggests that a prospective employee satisfies the inherent requirements of a particular position, a court might be entitled to infer that the reason for refusing employment was not for the stated reason but rather adverse action. However, this was not such a case as the Commissioner genuinely believed that the applicant could not satisfy the requirements. In these circumstances the reason for the adverse action was not the candidate's disability but rather the Commissioner's concern that the candidate could not safely perform the inherent requirements of the role.


Shizas v Commissioner of Police [2017] FCA 61

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