3 October 2023
Panazzolo v Don’s Mechanical and Diesel Service (Don's) is a recent case putting a spotlight on the responsibilities of an employer when handling an employee with a temporary injury.
Whether the injury occurred within or outside work hours, employers need to be aware that the resulting loss of capability is classed as a disability and therefore subject to disability discrimination protections.
Panazzolo, a heavy diesel mechanic, broke his wrist outside of work hours, requiring surgery and a period of rehabilitation of approximately three months before he was cleared to return to full duties. The issue that was ultimately ruled on by the Federal Court was whether Panazzolo's employer, Don's, should have provided Panazzolo with appropriate light duties before Panazzolo was approved to return to full duties, and after being cleared for light duties.
This case is factually complex with a long series of discussions back and forth regarding what was needed for Panazzolo to return to work. The parties reached an impasse when Don’s required Panazzolo to undergo further physiotherapy at his own cost to return to work, which Panazzolo could not afford after more than 3 months on unpaid leave. The matter was heard before the Federal Court on the basis that the employer was required to make reasonable adjustments for disability and had not done so for Panazzolo.
These accommodations must be done for the employee, such as permitting the use of machines to assist tasks ordinarily done by hand, or allowing the employee to seek assistance from a colleague despite the disruption this may cause. Reasonable accommodations are not requirements for the employee to act, such as requiring the employee to seek physiotherapy at their own cost.
While each case has unique facts, there is a warning for employers in Judge Brown’s decision. Employers should be careful before deciding that there are no reasonable accommodations which can be made for a disability or deciding that these accommodations would cause excessive hardship to the employer and therefore subject to the exemption. In the case of the diesel mechanic, the reasonableness of allowing other employees to assist due to Panazzolo’s limitations was considered against the impact on the workshop of his absence. While assistance from colleagues would slow overall output, it would not slow it as significantly as Panazzolo being absent for the full period required to heal and return to full duties.
There is not a requirement to create an entirely new role for an employee however, modifying that role to accommodate their limits is not considered to be creating a new role. In this case, shifting the mechanic to driving transports would have been a new role, but modifying his current role to use more mechanical aids than previously is a reasonable adjustment.
It is important to tread carefully when deciding that an employee’s disability cannot be reasonably accommodated. Strategies such as an in-workplace assessment of the employee engaging in their role to the limit of their ability would be appropriate when conducted by an appropriately qualified medical professional. If in doubt, seek legal advice.
[Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd  FedDFamC2G 665]
Disclaimer: This summary should not be regarded as legal advice or relied on for assistance in any particular circumstance or situation. For further information, call ECA Legal on on (08) 6241 6129 or email email@example.com.