1. IN BRIEF
On 6 September 2006, the New South Wales Administrative Decisions Tribunal (ADT) handed down the decision of Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261. In this decision, the ADT found that an employer is not obliged to alter the duties of a job in order to accommodate an employee with a disability. The tribunal articulated the process that an employer must follow in order to satisfy the elements of the ‘inherent requirements’ defence[1] and distinguished the application of the defence in ‘promotion cases’ and ‘hiring and firing cases’.
2. THE FACTS
Mr Christopher Laycock was employed by the NSW Police as a police officer from 1990 until 2004. In 1992, he sustained a back injury during the course of his employment which gave rise to the need for two surgeries and ongoing permanent impairment.
On 5 April 2001, Mr Laycock applied for the position of Investigations Manager at the level of Senior Sergeant. After performing duties as an Investigations Manager on a temporary basis[2] from 12 February 2002 to late September 2002, Mr Laycock was informed by his commanding officer that the officer could not support his promotion to the position of Investigations Manager. This was on the basis of a report prepared by a police medical officer which stated that Mr Laycock was not ‘fit for full operational duty and hence not fit for promotion to Investigations Manager’.
Mr Laycock alleged that the NSW Police’s refusal to give effect to his promotion and their offer of lesser duties after returning from his temporary position amounted to unlawful discrimination on the ground of disability in contravention of Section 49D of the Anti-Discrimination Act 1977 (NSW) (the Act). The NSW Police denied these allegations and sought to rely on the ‘inherent requirements’ defence[3] in their denial of promotion, among others.
3. RELEVANT LEGAL PRINCIPLES
4. THE DECISION
The tribunal held that the question of ‘inherent requirement’ did not arise in the complaint before them because it related to the promotion of Mr Laycock. [6] The tribunal characterised Section 49D(4) as a defence or exception to liability that is available in the limited circumstance of hiring or firing an employee.[7]
The defence was found to place a positive obligation on an employer to determine whether an employee with a disability can perform a job with the assistance of services, aids or facilities that would not typically be required by an able-bodied employee.[8] The tribunal observed that identifying the inherent requirements of a job does not require the employer to alter the duties of the job to render it suitable for a disabled employee.[9] Instead, it requires an employer to consider what the employee will actually be doing in the workforce and whether aids, services or facilities would allow them to perform the inherent requirements of that job.[10] The tribunal held that the defence requires that the aids, services or facilities are to be provided to the employee without imposing hardship on the employer,[11] and it is only when an employer has taken the positive steps provided for by the subsection that they may invoke the defence.
As to promotion, the tribunal affirmed that an employer is entitled to dictate the duties of the job that an employee with a disability seeks, subject to other laws and industrial instruments.[12] If an employer finds that an employee with a disability cannot perform some of the actual duties involved with the promotion, then it is open to them to deny the disabled employee the promotion. An employer does not need to consider if services, aids or facilities could allow the disabled employee to perform the job.[13]
As Mr Laycock was injured at work, Section 49 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) was relevant in that the NSW Police were required to provide suitable employment following his total or partial incapacitation. Ultimately, the tribunal held that this provision does not alter the legal obligations imposed on the employer by the Act or by the Police Act to determine the duties of a police officer.[14] They observed that in the absence of an ‘unequivocal statutory directive’ displacing the common law rule that an employer may determine the duties performed by an employee, there was no remedy available to Mr Laycock under the Act for allegedly failing to provide suitable duties.[15]
In the current case, Mr Laycock’s promotion was denied because expert opinion was that he could not fulfil all of the duties of the job he wished to be promoted due to his medical restrictions. Such duties included being actively fit to pursue offenders. The tribunal concluded that the NSW Police did not treat Mr Laycock less favourably than they would have treated ‘another employee who did not have a disability which was the same or similar to his disability, and who could not perform all of the duties of the job’.[16] It was Mr Laycock’s inability to perform the duties of the job, not his disability itself, that resulted in the denial of promotion.[17]The tribunal dismissed Mr Laycock’s complaints on the basis that they lacked merit and could not be substantiated, with an order for submissions on costs. The NSW Police were found not liable for any unlawful discrimination in contravention of the Act.
5. LESSONS FROM THIS DECISION
This decision clarified the reach of the ‘inherent requirement defence’ in discrimination cases. It demonstrates that employers will be obliged to treat a disabled employee differently to an able-bodied employee when applying the ‘inherent requirements’ defence in ‘hiring or firing’ situations and when applying this defence alone.[18] The decision therefore gives rise to a possible policy question about whether an employer should be required to accommodate for disabled employees in circumstances beyond hiring and firing, for example, when considering them for promotion.
Section 21A of the Disability Discrimination Act 1992 (Cth) (“the Commonwealth Act”) contains a separate ‘inherent requirement’ exception. The Act has not been amended to incorporate this general defence. While the State and Commonwealth Acts are intended to operate together, this decision does not resolve the legal question about whether the ‘inherent requirements’ defence provided by the Commonwealth Act will override the provisions of the Act. It is therefore clear that there is opportunity for Parliament to legislate on the issues elucidated in this case to improve the opportunities disabled employees are afforded in employment beyond their hiring and firing.
Finally, this decision confirmed that an employer’s obligation to provide suitable duties under the Workplace Injury Management and Workers Compensation Act 1988 (NSW) does not override their common law right to determine an employee’s job role without explicit statutory intention.
[1] Anti-Discrimination Act 1977 (NSW) s 49D(4).
[2] Police Act 1990 (NSW) s 66.
[3] Anti-Discrimination Act 1977 (NSW) s 49D(4).
[4] Ibid s 49D(a)-(d).
[5] Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261, [3].
[6] Ibid [39].
[7] Ibid [59].
[8] Ibid.
[9] Ibid [58].
[10] Ibid.
[11] Ibid [57].
[12] Ibid [62].
[13] Ibid.
[14] Police Act 1990 (NSW) s 8(3).
[15] Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261, [65].
[16] Ibid [69].
[17] Ibid.
[18] Ibid [57].
Written by Megan Sault.
Megan Sault is a paralegal in Alexander Morrison‘s practice group specialising motor vehicle claims and public liability claims that occur both within Australia and overseas and also assists Mark Port in Employment Law matters.
