At each stage of negotiating a RTW plan, the employer’s legal obligations extend beyond those prescribed by accident and workers’ compensation legislation. Commonwealth and state anti-discrimination laws prohibit discrimination and harassment based on disability / impairment in many contexts, including at work.

The specifics of anti-discrimination legislation vary slightly between the states and territories but any Australian worker who feels that, as a result of his or her injury or illness he or she has been treated less favourably or with unreasonable inflexibility while returning to work, has recourse to either the Commonwealth Disability Discrimination Act 1992 or the relevant state-based laws.

Combining information gleaned from the Australian Human Rights Commission  and a very informative training day conducted by the Victorian Equal Opportunity and Human Rights Commission, this briefing paper discusses in general terms how real or perceived discrimination and harassment might arise during the RTW process. We also offer suggestions as to how RTW can be managed in accordance with anti-discrimination principles.

What is discrimination?

Discrimination may be defined differently in different jurisdictions; the Commonwealth legislation (to which all Australian workers have recourse) defines it as when a worker is treated less favourably, because of his or her disability, than a person without that disability would be treated in the same or similar circumstances.

Discrimination is not always direct. The rules, requirements or conditions to which a worker is subjected may involve indirect discrimination if they disadvantage people with a disability and are not reasonable. For example, a position description that stipulates ‘all telephone operators in this call centre must wear high heels’ might be deemed indirect discrimination if management attempt to apply it to a worker with a broken leg. Not only is the injured worker disadvantaged by the prospect of losing their employment, the rule does not seem reasonable given that the wearing of high heels is of marginal relevance to meeting the genuine requirements of the position.

Advice about the factors that inform legal interpretations of “reasonableness” is available from the Australian Human Rights Commission. 

In the context of RTW / workers’ comp, discrimination might involve:

• Terminating the employment of a worker because he has been injured and / or lodged a workers’ compensation claim;
• Denying an injured worker access to benefits—for example training or promotion—to which she would otherwise have been entitled; or
• Advising a worker, who because of his injury requires reduced working hours that “These positions are full time or not at all”.

What is harassment?

Harassment of a worker because of their injury is a type of unlawful discrimination under both state and Commonwealth laws. In a RTW context, harassment is language or behaviour related to a worker’s injury that could be reasonably expected to humiliate, offend, intimidate or distress. (This definition is based on the Australian Human Right’s Commission’s interpretation of case law; there is no definition of harassment in the Commonwealth legislation.)

In the context of RTW and workers’ comp, examples of harassment might include:

• Sarcastic or belittling remarks about a person’s reduced productivity, following injury or illness;
• Setting a worker meaningless or impossible assignments, in retaliation for making a workers’ compensation claim;
• Tolerating or encouraging the behaviour of co-workers who mimic the visible signs of a person’s injury or illness; or
• Asking a person questions about their impairment in front of co-workers, particularly if the person appears uncomfortable or has previously indicated that such questions embarrass them.

It is important to note that once someone has indicated that a particular behaviour or circumstance makes them feel humiliated, offended, intimidated or distressed, any person would reasonably expect it to do so in the future. When it comes to humiliating treatment of an injured worker, “No!” means no in a legally enforceable way.

Courts may also take into account the vulnerable state of a person who has suffered injury or illness in assessing what might be reasonably expected to humiliate, offend, intimidate or distress them.

Why should employers be concerned about discrimination, harassment and RTW?

• Discrimination and harassment during RTW are against the law.
• Employers may be held legally liable and financially accountable for unlawful discrimination perpetrated by their staff or managers.
• Alleged discrimination and harassment is bad for corporate image.
• Even if no complaint is lodged, real or perceived discrimination and harassment is likely to delay return to work, increase claim duration and retard rehabilitation.
• Recent surveys suggest that of the 75% of Australians who experience discrimination or harassment without reporting it, 1/3 will quit their job within the next 12 months. Loyalty and morale suffer, staff turnover and associated costs increase.

How can real or perceived discrimination and harassment be avoided during RTW?

• Create a good first impression. We’ve said it before—the first five minutes after injury or illness matters. In the immediate aftermath of injury, line managers and supervisors set the tone of everything that is to follow. If they are impatient, suspicious or hostile, this will colour the worker’s perceptions of the entire process. And if they make threats or disparaging remarks early on, the organisation may be liable later. On the other hand, if they are supportive, concerned and accommodating, this tone will suffuse the RTW process.
• Train managers, supervisors and RTW coordinators. The people who have influence over RTW should be familiar with their organisation’s anti-discrimination obligations. They need to know that they can be held vicariously liable for the actions of their staff, and personally liable for their own behaviour. They also need to be confident in recognising problems and taking appropriate action to solve them. The equal opportunity, anti-discrimination or human rights commission in your jurisdiction should be able to point you in the direction of appropriate guidelines and training.
• Prioritise complaints. Perceptions and feelings (humiliation, distress, intimidation and offence) are central to complaints about discrimination and harassment. Delays in responding to complaints will only exacerbate negative feelings. Your best bet is to nip such problems in the bud by responding to them in a timely fashion. This doesn’t mean waiting for the next HR meeting or management get together to discuss the issues; it means taking immediate action. This will let the worker know that you view their concerns seriously.
• Ask questions. When perceptions of unreasonableness arise, negotiation and dialogue are your friends and assumptions your enemy. You’re more likely to reach a mutually satisfying resolution if you engage in dialogue—and if in-house processes fail and the worker makes a formal complaint, the authorities will be looking for evidence that you were willing to negotiate. 
• Keep records. Don’t just trust to your memory or the good will of the people around you. Document conversations and collect relevant data and statistics.
• Make changes. Most people who believe they’ve been victims of discrimination or harassment aren’t interested in big payouts; generally, all they want is to return to work and feel safe, respected and welcome in their workplace. Often, offering an apology and ensuring that the problematic behaviour isn’t repeated will resolve the problem.  

A quick disclaimer: we’re not lawyers, nor are we experts on the legislation in question. Queries regarding the specifics of anti-discrimination legislation or concerns around potential instances of discrimination / harassment should be directed to the anti-discrimination or equal opportunity authority within your jurisdiction, or to the Australian Human Rights Commission.