Allegations of failure to accommodate post-injury needs
The Federal Circuit and Family Court of Australia recently concluded a case involving an injured worker who filed a discrimination lawsuit against his employer, accusing them of failing to reasonably accommodate him after an injury.
The worker in question is Mark Panazzolo, employed by Don’s Mechanical and Diesel Services Pty Ltd. He claimed that his employer discriminated against him due to a wrist disability resulting from an assault outside of working hours. Following the incident, he was unable to return to work, but he believes he has sufficiently recovered to resume his duties.
The core issue of the case was whether the employer neglected to make necessary adjustments for Panazzolo’s return to work and if implementing those adjustments would impose unjustifiable hardship on the employer.
Panazzolo brought the case under the Disability Discrimination Act 1992 (Cth). The court had to carefully consider the interests of Panazzolo as a person with a disability against the interests of Don’s Auto as his employer.
On October 15, 2020, while walking his dog on a public pathway near his home, Panazzolo was assaulted by two individuals. The incident had no connection to his employment and occurred outside of working hours. As a result of the attack, he sustained a fracture to his left ulna, one of the bones in his forearm. He underwent surgical repair, involving the insertion of a metal plate and screws to stabilize the fracture. The surgeon advised him that he could not engage in heavy lifting or loading involving his injured arm for approximately three months after the surgery, which took place on October 21, 2020.
Panazzolo’s job as a heavy vehicle diesel mechanic at the employer’s workshop involved various tasks, including changing brake shoes, draining oil, lubricating steering, replacing clutches, oil filters, and rotating tires, as well as unbolting gearboxes.
Following the injury, Panazzolo believed that he was capable of returning to work from early 2021 onwards, supported by medical practitioners who had treated him. However, the employer argued that some tasks, particularly those involving pneumatically powered rattle guns, wheel hub removal, and clutch replacements, might exceed his physical capabilities due to his wrist injury. The employer also highlighted their duty of care to ensure proper repairs for public bus operators, as safety was a paramount concern.
In late December 2020, Panazzolo inquired via text message whether he still had a job at Don’s Auto, mentioning that his orthopaedic surgeon had cleared him to return to work. Due to the injury being unrelated to work, the employer proposed that any required assessments and tests, including grip strength and cardiovascular fitness, would be at the worker’s expense. After several exchanges between the parties, the employer warned Panazzolo that returning to work might pose a risk of aggravating his current injuries.
Frustrated by the situation and facing financial difficulties, Panazzolo formally resigned from Don’s Auto on August 4, 2021. He believed he had no alternative, as he needed to apply for social security benefits, which were not available to him because his former job at Don’s Auto was considered still open to him, even though he had resigned.