Kristjansson v State of Queensland  FCCA 3894
A decision in the Federal Circuit Court has again highlighted the importance of giving rational consideration to what the Court will deem to be 'reasonable adjustments' in relation to a claim of discrimination in the workplace.
The applicant in this matter had been an employee of the Queensland Department of Health for a number of years.
He took leave from 3 July 2009 until 21 July 2011 because he believed he was being bullied and harassed at work.
The applicant was able to return to work for a number of years but again took leave in January 2015, after making reports of bullying and harassment that he said that he was experiencing.
A WorkCover claim was rejected in mid-2015 and after obtaining several medical reports the Department of Health embarked on a suitable duties plan (SDP), to help him to return to work.
The applicant was able to secure a four week placement at a Brisbane Hospital in September 2015. However on his first day at the new workplace the applicant arrived late, was poorly dressed, had poor personal hygiene and insisted that he would stand rather than sit at a desk as he’d had a standing desk in his previous position. He was not permitted to continue in the placement after that first day.
While the search for another placement was underway the applicant emailed his requirement to his case manager that he would not meet with any potential placement supervisors unless it was confirmed that:
Unsurprisingly the Department was unable to find a host placement that would agree to all of these conditions. Eventually, the applicant filed a claim with the Australian Human Rights Commission, which was unable to be resolved in the commission and on 13 November 2017, the applicant began proceedings in the Federal Circuit Court.
He claimed that the Department’s inability to successfully return him to work constituted:
His position was that the Department was at fault because it:
The reasonable adjustments the applicant said the Department should have made were particularised as:
In his decision Judge Vasta (after considering the medical evidence) found that the applicant did in fact have a disability, being OCD but that he had not been discriminated against as a result of this disability.
On finding the first proposed adjustment of an ‘on call’ support person was not reasonable His Honour stated “the Department ends up having to train two people to do the one job, and expend all of the resources to train those two people.”
On finding the second proposed adjustment to record discussions was not reasonable His Honour stated: “I do think that imposing that upon a workplace will breed discontent, distrust..."
The adjustment requiring all directions to be in writing was not reasonable because: “That request is simply unjustifiable. Whilst some matters, when directions are given, could be put in writing afterwards so as to be confirmatory that is not what it is that is being asked here. It is for all directions to be in writing.”
Finally, the forth adjustment was not reasonable because it: “Simply means that a supervisor cannot even discuss a minuscule matter of the person’s work with them unless he is given 24 hours’ notice in writing and gets the support person there. Again, this is just not practical, and cannot be a way in which the workplace is run.”
Author: Edmund Burke
Rachel Drew, Partner
T: +61 7 3135 0617
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Published by Edmund Burke