Discriminated at Work Because of a Disability?

The case of Shizas v Commissioner of Police [2017] FCA 61, involved a lawyer previously working for the Australian Taxation Office who dreamt of being a police officer. He applied to join the Australian Federal Police in 2002 but he failed as he did not have an unrestricted driver’s license. He applied again in 2009 but his application did not progress after taking the aptitude test. In 2012, he applied for a third time and he received an offer of employment conditioned on his successfully obtaining a medical and security clearance.

The lawyer had a condition called ankylosing spondylitis which caused inflammation of his spine. He was under the care of a medical expert on rheumatology and his symptoms were controlled. The lawyer passed the Physical Competency Assessment. In the medical forms he filled out, he admitted a history of injury to the spine and that he experienced stiff and painful joints. His responses triggered a request for a musculoskeletal assessment and a report from his attending physician. He was also required to see a physiotherapist for assessment to see if his history of injury may impact his ability to undertake the training and the rigours of operational policing. His attending physician rendered an opinion that there were no restrictions on his ability to carry out the requirements of force training for operational policing.

Consequently, he received a letter informing him that he had been selected for engagement as employee of the AFP and that he was going to be deployed at the Sydney Airport. The letter also informed him that his employment was conditioned upon him meeting the conditions required for engagement.

On the day the lawyer received the conditional offer of employment, a doctor of the AFP reviewed the physical suitability of applicants for recruitment based on the assessment reports in the lawyer’s file. The doctor wrote that the lawyer was not fit for recruitment as he did not meet the medical standards due to ankylosing spondylitis.

The lawyer then received an email that informed him that he had not met the medical clearance requirements and that his application will not proceed further. The lawyer asked for a review of the decision not to employ him. The AFP responded by informing him that ankylosing spondylitis was an exclusion under the AFP Medical Standards that listed a range of medical conditions that excluded applicants from being medically cleared as fit for recruit training.

The lawyerlodged a complaint for disability discrimination with the Australian Human Rights Commission. He had carefully read the medical standards of the AFP prior to lodging his application for employment and noted that ankylosing spondylitis was not one of the conditions that excluded candidates for recruitment.

While the complaint for discrimination based on disability was pending, the AFP modified the findings in his medical clearance, stating that although the lawyer currently met the AFP medical standards, there were potential risks in the long term and that in the future, he may be required to take immunomodulating drugs which will stop him being deployed overseas.

The Assistant Police Commissioner who was then head of the Human Resources of the AFP, learned of the complaint filed by the lawyer and he reviewed his records. He concluded that the lawyer’s attending physician merely gave an opinion on his ability to carry out the requirements for force training but did not specifically state whether the lawyer possessed the physical requirements for operational policing.

The Assistant Police Commissioner then asked for an independent medical opinion. His concern was that although the lawyer was fit for training, he might not be fully deployable in an operational policing role. He was concerned that he might pose a danger or a risk of injury to himself or to other police officers as the operational policing role often required him to wrestle another person who may resist arrest. The independent medical opinion concluded that the risk of injury was not quantifiable. Without conferring with the lawyer’s attending physician, the Assistant Police Commissioner decided not to reverse the initial denial of a medical clearance as in his opinion he was at an increased risk of injury. Thus, he was refused employment for a second time. The lawyer lodged an application for general protections (adverse action) alleging that this second refusal of employment was based on his having filed a discrimination complaint.

The court found that the AFP refused to employ the lawyer because of his disability in the first instance, so the employee was successful in his discrimination claim.

However, the Assistant Police Commissioner’s refusal to employ him after a review of his medical records cannot be viewed as an adverse action. The Court concluded the Assistant Police Commissioner did not refuse to employ him because he had filed a complaint for discrimination but the refusal to employ him the second time was based on the his erroneous belief that the lawyer did not possess the inherent requirements for the job. The lawyer was not successful in his second claim.

The lawyer was however able to successfully prove discrimination based on disability by the AFP.

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