A mechanic has been awarded $44,000 in compensation after his employer failed to make reasonable adjustments to allow him to perform his role after an out-of-work injury.
Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FEDCFAMC2G 665
Summary
Mark Panazzolo (the employee), a diesel mechanic, was successful in his claim against his former employer, Don’s Mechanical and Diesel Service Pty Ltd (Don’s Auto/the employer), for disability-based discrimination.
Background
On 15 July 2019, Mr Panazzolo was employed by Don’s Auto as a diesel mechanic.
On 15 October 2020, Mr Panazzolo was assaulted while walking his dog. The assault was outside of work hours and unconnected to his employment with Don’s Auto. He suffered a fractured ulna in his left arm and underwent surgery on 21 October 2020. His surgeon advised him that he could not use his injured arm for heavy lifting or loading for the next three months.
Mr Panazzolo had a disability within the meaning of s 4(1) of the Disability Discrimination Act 1992 (Cth) (DDA)
He obtained medical certificates at various intervals and was assessed by a physiotherapist who provided a report in February 2021. The report recommended he could return to work in a restricted capacity and perform tasks requiring up to a “medium-heavy” hand strength, with a carrying restriction of 22.7kgs. The report also recommended a review in 6-8 weeks’ time to determine the suitability of working unrestricted.
However, Don’s Auto refused to allow Mr Panazzoloto to return to work unless he could resume employment at full capacity with no restrictions.
The employer argued that they could not provide an adjustment to his work as there was no suitable light duties he could perform, such as driving, as he didn’t have a driver’s licence.
Further, they believed his injury would pose a public safety risk, as a diesel mechanic was often required to tighten wheel bolts and other essential equipment.
On 17 June 2021, the Mr Panazzolo complained to the Australian Human Rights Commission. The parties could not resolve the matter and eventually the complaint was terminated. On 24 September 2021, Mr Panazzolo commenced a proceeding in the Federal Circuit and Family Court of Australia (FCCA).
Disability Discrimination Act 1992 (Cth).
Direct discrimination occurs when you treat or propose to treat a person less favourably because of their disability than someone in similar circumstances without their disability.
Under s 5(2) of the DDA, direct discrimination also occurs where:
a person does not make, or proposes not to make, reasonable adjustments for the person with a disability; and
the failure to make these adjustments will have the effect of the person with a disability being treated less favourably than a person without the disability in similar circumstances.
Section 5(2) provides an obligation to accommodate an injured worker through reasonable adjustments if it does not impose an unjustifiable hardship on the employer.
Section 15 of the DDA makes it unlawful for an employer to discriminate against an employee on the ground of disability if they deny the employee access to benefits associated with employment, dismiss an employee or subject them to any other detriment.
Mr Panazzolo argued that Don’s Auto directly discriminated against him when they failed to provide him a reasonable adjustment, refused to allow him to return to work and resume his employment and he was therefore refused a benefit based on an imputed injury.
Exception
Discrimination can be lawful if an exception is satisfied. The onus is on the person arguing the exception to prove on the balance of probabilities that an exception has been established.
Section 21B provides that discrimination is not unlawful if avoiding the discrimination means the employer would face an unjustifiable hardship.
Unjustifiable hardship is defined in s 11 and requires an assessment of all the facts and circumstances, including the nature and likely benefit or detriment and effect of the disability on all the parties, as well as the cost to make adjustments and any ongoing costs to the business.
Additionally, section 21A(1) permits discrimination if the person with a disability cannot carry out the inherent requirements of their particular work, even with reasonable adjustments.
Decision
Judge Brown of the Federal Circuit and Family Court found that the employee was discriminated against because of his disability.
There were adjustments which could have been made, such as the use of mechanical aids or a staged return to work, which were not likely to cause hardship to Don’s Auto. Yet the employer failed to provide any adjustment or establish an exception applied.
The Court also did not accept the argument that the employee could not satisfy the inherent requirements of the role because the employer did not allow him to return to work to test this and there was no other evidence to support an assertion that he would not be able to undertake his role safely.
The Court awarded Mr Panazzolo $44,000 in damages comprising $30,000 for economic loss, $10,000 for the hurt, distress and injury to feeling and $4,000 in interest.
Commentary
This decision reminds employers that, to prevent discrimination, they have an obligation to make reasonable adjustments to workers who have suffered an injury.
This case summary was prepared by Wotton + Kearney with contributions from Kali Wischmann Pro Bono Associate, and Jordan Bova, Solicitor.