Assessing appropriateness: Rehabilitation versus medical retirement

By Bruce Heddle.

Key Points:
A failure to take a considered approach may lead to an employer prematurely initiating a medical retirement process in circumstances where rehabilitation efforts have yet to be explored or exhausted.

The case of Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 examines the issue of medical retirement and provides an example of where the use of this process by an employer was deemed discriminatory by the Anti-Discrimination Tribunal Queensland.

Background

In Toganivalu, the Anti-Discrimination Tribunal Queensland considered a complaint made by Mr Toganivalu that his employer, Queensland's Department of Corrective Services, had unlawfully forced him into medical retirement on account of a knee injury. Mr Toganivalu had been employed by the Department as a Custodial Correctional Officer ("CCO") since April 1998.

Mr Toganivalu had sustained several injuries to his knees and as a result, was involved in a rehabilitation and return-to-work program at the Department. Prior to completing the program, the Department requested Mr Toganivalu undertake a medical examination to assess him for the purposes of medical retirement.

The Department argued that the results of the examination showed that Mr Toganivalu suffered from osteoarthritis in both knees, and that the condition of both knees was not compatible with the occupational requirements of a CCO's duties. The Department relied on the results from the medical examination to medically retire Mr Toganivalu on health grounds in August 2004.

Outcome

Tribunal Member Gerard Mullins upheld Mr Toganivalu's complaint of discrimination, finding that Mr Toganivalu was treated less favourably than other officers without the impairment. Member Mullins held inter alia, that Mr Toganivalu was not:

• consulted, interviewed or assessed before steps were taken to proceed to the "last resort" of having him medically assessed for medical retirement purposes;
• afforded the opportunity to complete his rehabilitation program despite the fact that his condition was improving, but instead was referred for medical assessment to determine whether he should be medically retired; or
• offered the opportunity to have his workplace adjusted to assist with the performance of his work duties, that is, reintegration into the workplace was not considered as an option by the Department.

Member Mullins was also satisfied that the Department could not otherwise rely on an exemption under the Anti-Discrimination Act 1991 (Qld).

Member Mullins held that he could not be satisfied "on the balance of probabilities that [Mr Toganivalu] is unable to undertake the genuine occupational requirements of a CCO at [the Department]". The Department argued that as a CCO, essential requirements that Mr Toganivalu was required to carry out included:

• an ability to respond effectively to particular "codes" (that is an alarm or call which requires a response from a CCO, where different codes require a difference level of response);
• an ability to effectively control and restrain prisoners;
• an ability to ascend and descend at least 120 stairs while performing night shift head counts;
• an ability to have direct inmate contact;
• an ability to walk long distances;
• an ability to stand for prolonged periods; and
• an ability to engage in each of the tasks listed above safely.

In this respect, Member Mullins stated that while the "complainant might be less competent than the average workers to carry out each of the described functions, [he was] not satisfied to the requisite standard that the complainant [was] unable to perform the genuine occupational requirements of the position of a CCO".

Member Mullins also rejected the Department's argument that it was obliged to terminate Mr Toganivalu's employment for workplace health and safety reasons, and that the Department would have suffered unjustifiable hardship had it not done so. Member Mullins concluded that "there was no justifiable reason at the time, based on workplace health and safety considerations, to not permit [Mr Toganivalu] to complete his return to work program".

The Department was ordered to reinstate Mr Toganivalu and pay him $44,852.44 in compensation.

Implications

This case illustrates some of the issues which a prudent employer should have regard to when contemplating whether medical retirement is appropriate in the circumstances. For example, an employer may have to consider:

• whether an employee should be allowed to continue with his/her rehabilitation plan where there is evidence of improvement in their condition;
• whether an employee should be afforded opportunities to have the workplace adjusted to accommodate their injury, with a view to allowing the employee's condition to improve and to return to full duties; and
• the extent of consultation with the employee to keep them informed insofar as the employer is contemplating initiating a medical retirement process.

The case also identifies how critical evidence of the employer's existing workforce will be to proving occupational requirements, particularly when there is no ongoing medical testing in place.

A failure to take a considered approach may lead to an employer prematurely initiating a medical retirement process in circumstances where rehabilitation efforts have yet to be explored or exhausted. The decision in Toganivalu certainly also reaffirms that when it comes to relying on an exemption to discrimination, the onus to prove that the exemption applies lies with the employer and, moreover, whether an exemption is in fact available will ultimately turn on an objective assessment and analysis of the circumstances.

Thanks to Jessica Caban for her help in writing this article.

For further information, please contact Bruce Heddle.