Refused a police job over a spine condition: one win, one loss

What happened

Mr Shizas, a senior lawyer at the Australian Taxation Office, had long wanted to be a police officer. He first applied to the Australian Federal Police (AFP) in 2002, in his early twenties, and again in 2009. Neither application succeeded.

In 2012 he applied a third time, to become a recruit. That year he was diagnosed with ankylosing spondylitis, a form of arthritis that causes inflammation in the spine and other joints. With treatment his symptoms improved. On his AFP medical form he wrote that his condition was "well controlled" and that he had "no functional limitations", and his specialist wrote that there was "no restriction in his ability" to carry out the AFP's use of force training requirements.

A doctor engaged by the AFP examined him and ticked the box marked "Fit for Induction Training/Appointment". On 19 March 2013 he was offered a place on the recruit training program, conditional on medical and security clearances.

Two refusals

The same day, another AFP medical adviser reviewed his file. Although she had never examined him, she wrote that he was "Not fit for recruitment" because of ankylosing spondylitis. Days later he was told by email that he had not met the medical clearance requirements. When he asked for a review, an AFP nurse told him the condition was "an exclusion under the AFP Medical Standards", although there was evidence it was added to the AFP's published list only in April 2013.

In November 2013 Mr Shizas complained to the Australian Human Rights Commission. While that complaint was pending, the medical adviser noted on his file that he currently met the AFP medical standards. Even so, the AFP's head of human resources, an Assistant Commissioner, arranged an independent medical opinion. That doctor found Mr Shizas fit and without symptoms, but said his condition increased his risk of injury by an amount she could not measure, and later that she would not call it trivial or low. On 10 July 2014 the Assistant Commissioner told Mr Shizas he would not reverse the original decision.

He withdrew that complaint and, on 19 June 2015, sued in the Federal Court.

The legal test

Section 351(1) of the Fair Work Act 2009 (Cth) says an employer must not take adverse action against an employee or a prospective employee because of a protected attribute, including a physical or mental disability. Adverse action includes refusing to employ someone. Under s 361, once the worker proves the refusal and the attribute, the employer is presumed to have acted for that reason unless it proves otherwise.

There is an exception in s 351(2)(b): the protection does not apply to action taken because of the inherent requirements of the particular position concerned, meaning the essential parts of the job.

What the court decided

The first refusal was unlawful. The AFP said its medical adviser made that decision, but she and the Assistant Commissioner both said she had no power to make it. The AFP never identified or called the person who did. Justice Katzmann held that without evidence from the decision-maker, the AFP could not prove it had not refused Mr Shizas because of his disability, and called its failure to call that evidence "wholly unexplained".

The second refusal was different. The AFP argued the Assistant Commissioner acted on a risk of injury, not the disability itself. The judge disagreed: a disability includes its manifestations, and drawing that line would be "as artificial as saying that a person was refused employment not because he was a paraplegic, but because he had no control over his legs". So the second refusal was also because of the disability.

But the exception applied. Although the job was a training place, an inherent requirement was that Mr Shizas be physically capable of operational policing. The Assistant Commissioner genuinely believed, from the independent report and his 32 years of policing, that Mr Shizas faced a substantially higher risk of injury in a struggle with a resisting person. The judge said he "may have been wrong in this belief", and that the evidence indicated he "probably was". Under s 351(2)(b), though, the question is the decision-maker's actual reason, not whether the worker could in fact do the job, and on that question the AFP succeeded.

What he got

Mr Shizas sought no compensation. The court declared that the AFP had breached s 351(1) in March 2013, but refused to order that he be employed: the training course had long passed and his recruitment results were years old. By then the AFP's medical standards had been revised so that conditions like his were assessed case by case. The judge said any new application should not be affected by misconceptions about his condition. Her provisional view was that there should be no order for costs.

What this means for you

If you are refused a job, or offered one and then knocked back after a medical, because of a health condition, the general protections in the Fair Work Act can apply even though you never started work. An employer that cannot show who decided, and why, may struggle to defend it.

But an employer whose decision-maker genuinely believed you could not safely meet the job's inherent requirements may succeed under s 351, even if the medical evidence favours you. A complaint under the Disability Discrimination Act 1992 (Cth) asks whether you could in fact do the work, so it is worth getting advice early about which route suits your facts, because the time limits differ.