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.  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.
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. 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. 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. 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, 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. 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.
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. 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.
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’. It was Mr Laycock’s inability to perform the duties of the job, not his disability itself, that resulted in the denial of promotion.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.