Reasonable adjustments for people with a disability

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 28 June 2019

The Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act) imposes express obligations to make 'reasonable adjustments' in certain areas for a person with a disability. While these obligations were implicit in the Act's predecessors, the duty is now explicit.

Each of the 'reasonable adjustment' obligations are 'stand-alone' provisions. So, a contravention of any of them constitutes unlawful discrimination and can be an additional head of claim for a person bringing a complaint to the Victorian Civil and Administrative Tribunal (VCAT) or the Victorian Equal Opportunity and Human Rights Commission.

When reasonable adjustments are required

The obligations to make reasonable adjustments are set out in various sections of the Equal Opportunity Act. They apply to:
  • Employment, including adjustments for employees and people offered employment (section 20), and partners/people offered partnership (section 33)
  • education (section 40)
  • the provision of services (section 45).
The Equal Opportunity Act contains examples of practical steps that may constitute 'reasonable adjustments', including:
  • installing access ramps for wheelchairs
  • allowing a person or employee to be absent from work for rehabilitation or medical treatment
  • allowing a person to take more frequent rest breaks during work
  • providing a teacher's aide to a student
  • including subtitles in audio-visual presentations.

Whether the adjustments are reasonable

In determining whether it is reasonable to require adjustments to be made for a person with a disability, VCAT must look at all relevant facts and circumstances. Sections 20(3), 33(3), 40(3) and 45(3) of the Equal Opportunity Act prescribes the factors that may be relevant, including:
  • the person's circumstances, including the nature of the person's disability
  • in employment, the nature of the work offered or performed
  • the type of adjustment needed to accommodate the disability
  • the respondent's circumstances, including their nature, size and financial circumstances
  • the effect on the respondent of making the adjustment (including the number of other people who would be benefited or disadvantaged by the adjustment, the financial impacts and the impacts on employment efficiency and productivity)
  • the consequences for the respondent if adjustments are made
  • the consequences for the person if the adjustment is not made and, if an adjustment in education is made, the effect on the person's achievement, participation and independence
  • any relevant disability action plan made under the Disability Discrimination Act 1992 (Cth) or the Disability Act 2006 (Vic).

When adjustments are not required

The requirements to make reasonable adjustments apply unless the adjustment would be ineffective because:
  • in a work-related context, the person or employee could not 'adequately perform the genuine and reasonable requirements' of the employment or partnership even after the adjustments are made (sections 20(2) and 33(2))
  • in an education context, the person 'could not participate in or continue to participate in or derive or continue to derive any substantial benefit from the educational program' even after the adjustments are made (section 40(2))
  • in relation to the provision of services, 'the person could not participate in or access the service or derive any substantial benefit from the service' even after the adjustments are made. (sections 45(2) and 46).
In Dziurbas v Mondelez [2015] VCAT 1432 (Dziurbas), for example, VCAT considered there was a failure to make reasonable adjustments when a confectioner returned to work following a non-work-related injury. The confectioner's role involved duties such as lifting, tipping and stacking boxes weighing 10-15 kilograms. His manager asked him to attend a meeting, which Mr Dziurbas anticipated would discuss his return to work. Instead, at that meeting, his employment was terminated. There was no evidence that the manager discussed the implications of Mr Dzuirbas's medical condition for his actual duties. Mr Dziurbas was given no opportunity to identify any adjustments needed and to contribute his thoughts on whether they would be reasonable.

Under sections 23, 34, 41 and 46 specific defences are available to respondents: In Dziurbas, VCAT found the adjustments the employee required must be identified, and the party relying on the exception must prove those adjustments are not reasonable under section 23(3) of the Equal Opportunity Act [135]. Further, the party relying on the exception must prove it complied with its requirements.

An employee needs to articulate what adjustments they need and expect from an employer so they can perform the genuine and reasonable requirement of the job. In Walker v Heathcote Health [2017] VCAT 171 the complainant (a personal care attendant) had been away from work when the respondent notified her that she was to be placed on a performance management plan. The performance management plan required her to work only day shifts. The complainant claimed she could not work day shifts because of her disability (depression and seizures), and that the respondent failed to make reasonable adjustments to allow her to perform her role. VCAT held there was no breach of section 20 because there was no evidence the complainant had told her employer that her disabilities meant she required an adjustment to working only night shifts:

The first thing that strikes me about section 20 is that an employee needs to articulate what he or she needs and expects from an employer by way of adjustment so as to enable him or her to perform the genuine and reasonable requirement of a particular job. As counsel for the respondent put it, his clients are not mind readers [85].

Further, even if the complainant established she had told the respondent what she needed, whether the adjustments sought were reasonable in all the circumstances is still a question.

In Butterworth v Independence Australia Services [2015] VCAT 2056 VCAT stated the duty to make reasonable adjustments does not require an employer to create another job for the employee or to keep the employee in work, but it may require the employer to consider redeploying the employee in suitable roles in other parts of the organisation [208]-[209]. In this case, a complainant who sustained a shoulder injury at a call centre while sitting for extended periods successfully argued her employer failed to make reasonable adjustments for her disabilities during this period. The reasoning was that she was not redeployed to a role that was available in another team, and instead was terminated due to her workplace injury.

The matter of Bevilacqua v Telco Business Solutions [2015] VCAT 269 has important implications for women who cannot work full time, or who need certain adjustments, due to morning sickness. VCAT found morning sickness is a disability under the Equal Opportunity Act. The decision means the Act's requirement to make reasonable adjustments for employees extends to pregnant employees who need adjustments due to morning sickness.

Reasonable adjustments are also required in education, as discussed in When reasonable adjustments are required.

Genuine and reasonable requirements of employment

To understand the 'genuine and reasonable requirements' of an employment, VCAT must look at all the circumstances surrounding the employment. These circumstances include any contract of employment, statutory functions, and organisational or operational requirements.

VCAT considered the phrase 'genuine and reasonable requirements of the employment' in the case of Davies v State of Victoria (Victoria Police) [2000] VCAT 819 in the context of the equivalent exception under section 22 of the Equal Opportunity Act 1995 (Vic). In that case, VCAT said:

What are the genuine and reasonable requirements of the employment? In our view, these are wider than the inherent or essential requirements of the employment… The requirements of the employment and the requirements of the employer are not necessarily the same thing, although they will often be the same. The requirements of the employment refers to what the job or position requires to be done, as well as what is necessary to do those duties. The term covers the whole range of these requirements, and not just the 'essential' ones. The requirements must be requirements 'of the employment'. In other words, they must relate to and derive from the employment. They must be genuine requirements. An employer cannot invent requirements which are not truly requirements of the employment. They must be reasonable requirements. As was pointed out in the context of indirect discrimination, 'reasonable' is a more demanding test than one of convenience but a less demanding test than one of necessity ( Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; [1989] FCA 342; [1989] 23 FCR 251 at 263 per Bowen CJ). So, a requirement for abilities or qualifications that are grossly disproportionate to the degree of difficulty of the duties, might not constitute a reasonable requirement of the employment.

VCAT went on to say the genuine and reasonable requirements of employment may include certain abilities and skills that are relevant to the duties of the employment. A certain degree of physical or mental fitness is an example.

VCAT commented, that the circumstances in which the employment is carried out, including dangers to which the employee may be exposed or may expose others, may also be relevant in determining the genuine and reasonable requirements. On that point, VCAT cited the reasons of Justices Gummow and Hayne in X v Commonwealth of Australia [1999] HCA 63, which concerned whether a soldier with HIV/AIDS could perform the 'inherent requirements' of combat duties and whether the risk of others being infected in the course of the employment was relevant.

Other cases in which genuine and reasonable requirements of employment were considered include:
  • Dziurbas v Mondelez Australia [2015] VCAT 1432 - Mr Dziurbas was terminated from his employment because his employer Mondelez concluded he did not have the capacity to undertake the inherent requirements of his role. Mondelez had obtained an independent medical report following two inconsistent reports from Mr Dziurbas's doctor about his capacity. VCAT held Mondelez had not properly investigated Mr Dziurbas's role at the time of his termination. Mondelez had assumed Mr Dziurbas was largely required to operate a steel bank machine, which was accepted to be a fairly onerous task. In reality, however, he performed a myriad of other less physical tasks, which meant Mondelez's claim was unfounded. On that basis, VCAT held Mr Dziurbas had been directly discriminated against by reason of his disability, and Mondelez had not made appropriate enquiries as to whether Mr Dziurbas's role could be reasonably adjusted to accommodate him.
  • Kassir v State of Victoria [2012] VCAT 1977 - Mr Kassir was unsuccessful in his application to join Victoria Police. He had disclosed a history of mental health issues, including post-traumatic stress disorder, depression and anxiety. He claimed the recruitment process discriminated against him because of his disabilities. The respondents relied on the opinion of the Assistant Police Medical Officer and the Police Psychologist, who both formed the view that Mr Kassir would be unsuitable for the role. In this case, the respondents conceded Mr Kassir had been treated unfavourably because of his disability, but considered the treatment was not unlawful because Mr Kassir could not perform the genuine and reasonable requirements of the job. VCAT agreed, and this case was determined on the specific medical evidence (including expert evidence) of the genuine and reasonable requirements of employment in policing.

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