In a recent hearing in South Australia, an employer’s decision to refuse permanency to a driver with Asperger’s was deemed unfair and irrational, but not a breach of any anti-discrimination laws. According to the Tribunal, it was fair to consider the potential for future injury and therefore no breach of the Equal Opportunity Act 1984 (SA) was made.

The employee was initially engaged as a pick-up and delivery driver with TNT through a recruitment agency called Skilled Recruitment. He applied for permanency in this role and was made subject to a medical assessment as part of the application process. The results showed that the driver had passed an extensive physical and functional assessment, including 11 strength and flexibility tests. As such, he was declared by the administering doctor to be suitable for the position.

Nevertheless, TNT refused to provide him with a permanent role and failed to provide an explanation for their decision. The employee then lodged a complaint with the Equal Opportunity Tribunal, arguing that the decision was based on either his disclosed Asperger Syndrome or previous injuries. This was denied by TNT’s OHS manager, who claimed that the company had rejected the application based on a risk of future injury and more specifically, the employee’s poor hamstring flexibility, poor shoulder strength and gripping difficulties.

In the eyes of the Tribunal, the OHS manager was not qualified to override the doctor’s assessment despite his qualifications in physical education, exercise physiology and rehabilitation. This decision “undermined the integrity of the pre-employment assessment system so carefully and expertly set up” and was ultimately “unfair” to the employee. Having said that, it was held by Judge Cole and members Helena Jasinski and Anne Bachmann, that the decision was not discriminatory on the basis of a “disability” as the company was more concerned with future injury, pain and lack of safety. These factors do not imply a “disability” as defined in the Act and in any case, it was held that the employer was likely to fall within the exemption in s 71. Under this provision, a person with a disability will not be the subject of discrimination if they are unable to perform adequately the work required of them or to respond adequately to situations of emergency.

This case serves as a reminder for employers to ensure that they are not discriminating against prospective employees. Medical evidence which has been provided by qualified professionals will attract significant weight, however employers may be justified in their decision where there is a strong likelihood of future injury.

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If you have any queries on how to manage ill and injured workers, please call the NRA Hotline on 1800 RETAIL (738 245).