Right to work - disability, discrimination and the law

Susan Frankel
Summary 
  All people have a right to work. In Australia, it is unlawful to discriminate against a person with a disability in the workplace. People with a disability have work rights including being protected from discrimination when applying for a job. They can negotiate flexible work arrangements and request reasonable adjustments in their workplace. People with a disability can contact organisations if they think they have experienced discrimination. They can make a complaint about their experience. 
Posted by: 
Susan Frankel on 24/01/2014
A man searching for a job in the newspaper
Job search

What do these rights mean for you?

 

 It makes sense for people with a disability to know their employment rights and laws. Put simply, what do these rights and laws actually mean for you?

 Both state and federal legislation provide that if someone is capable of performing the inherent requirements of a position, regardless of their disability, they are protected from discrimination in the area of employment.

The relevant Victorian legislation is the Equal Opportunity Act 2010 (Vic) and the federal legislation is the Disability Discrimination Act 1992 (Cth). It is unlawful to discriminate against someone because of their actual, presumed, present or past disability.

You are protected

Employees with a disability are protected from discrimination in the workplace at all stages of employment including:

  • recruitment, including how positions are advertised and how interviews are conducted
  • negotiating flexible work arrangements
  • disclosing disability in the workplace
  • returning to work after illness or injury
  • dismissal, retrenchment or demotion.

JobWatch

JobWatch provides assistance to Victorian workers about their work rights. It is a not-for-profit and independent community legal centre funded by Victoria Legal Aid and state and federal governments.

Zana Bytheway the executive director of JobWatch says they receive 500 calls each year relating to disability discrimination.

It's disability discrimination that consistently features in the top five of discrimination calls.

Bytheway admits it is not always easy to prove discrimination, especially when it comes to recruitment.

Disability discrimination claims may be difficult to prove when an employer disguises its real motive for not hiring a person with a disability.

Other forms of discrimination that might occur include in the terms or conditions on which employment is offered or provided, or in denying or limiting an employee’s opportunities for promotion, transfer, training or other benefits.

Where to get help

There are a range of organisations to talk to if you feel you are being discriminated against. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has an assistance hotline and can arrange mediation and conflict resolution. The Fair Work Ombudsman has a general helpline and is well versed in the Fair Work Act. The Victorian Civil and Administrative Tribunal (VCAT) will also hear a dispute on anti-discrimination and make a decision if you believe you have been treated unjustly.

There is also the Disability Discrimination Legal Service (DDLS), a statewide independent community legal centre that specialises in disability discrimination legal matters. It provides free legal services in several areas including information, referral, advice, casework assistance, community legal education, and policy and law reform.

Making a complaint

According to Bytheway, workers who feel they have been discriminated against have a range of options.

She says, People can choose between making a complaint in either the Victorian or federal jurisdictions, but not both.

In the Victorian jurisdiction a worker has 12 months from when the discriminatory conduct took place to file a complaint at VCAT. A worker may also consider filing a complaint at the VEOHRC first, for a voluntary conciliation.

In the federal jurisdiction, a worker has 12 months from when the discriminatory conduct took place to make a complaint at the Australian Human Rights Commission (AHRC).

Bytheway says it is a good idea to consider specific legal advice before choosing which jurisdiction to make your complaint, as there may be differences between state and federal jurisdictions that may affect the claim.

Reasonable adjustments

Under both state and federal legislation, employers are obliged to make reasonable adjustments in the workplace to accommodate a worker’s disability.

Reasonable adjustments that an employer must make may include allowing flexibility in weekly hours to allow an employee to attend regular medical appointments. It could also involve allowing more frequent breaks for people with chronic pain or fatigue.

According to JobWatch, adjustments are required to be made not only during employment but also during the recruitment stage.

However, in certain circumstances an employer may decide not to make adjustments and in some circumstances this is not considered discriminatory. For example, if the person with the disability would still be unable to perform the inherent requirements of the job even if the adjustments were made, or when the adjustments would result in unjustifiable hardship for the employer or making adjustments is not reasonable for the employer.

Employers can apply for funding support through Australian Government’s Workplace Modifications Scheme for financial assistance to cover the cost of accommodating workers with a disability. 

Education

JobWatch has advised many workers about their rights and obligations in the workplace. It has also settled cases based on disability discrimination.

Zana says in JobWatch’s 33 years of experience it has assisted many people with disabilities with their discrimination enquiries and although there are legal remedies available, more education is required to prevent the occurrence of disability discrimination.

Australian Network on Disability

DDLS

JobWatch

VEOHRC

VCAT

Workplace Modifications Scheme

 

Comment on this article