$44K payout for out-of-work injury discrimination

A mechanic has been awarded $44,000 in damages after a federal court found that his employer had discriminated against him. The employer had failed to make reasonable adjustments to help the mechanic return to work after he had sustained a wrist injury during an unprovoked attack.

This discrimination case saw the employer continually deny the mechanic from returning to work. This is despite being medically cleared to do so. And the employer had very little regard for the mechanic’s financial situation, which saw him become so desperate that he was “cashing in cans so I can eat” . Let’s take a look at the events of this discrimination case – Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023].

Mechanic is discriminated at work after suffering injury in unprovoked attack

58-year-old Mark Panazzolo, an experienced mechanic, had been working for Don’s Mechanical and Diesel Service in New Town, South Australia for a little over year when his life took an unexpected turn. On 15 October 2020, he had been walking his dog on a public pathway close to his home when he was assaulted by two men.

Critical to this workplace discrimination case was that the assault had taken place outside of work hours. It had no connection to Mr Panazzolo’s work. He had not instigated the attack in any way, and the two assailants were later charged and served time in gaol. The attack left Mr Panazzolo with a fractured bone in his forearm, which required surgery the next day. In fact, he had to have a metal plate and screws placed in his forearm.

“Cashing in cans so I can eat:” Employer refuses to let desperate mechanic return to work

After undergoing surgery, Mr Panazzolo was told by his surgeon that he won’t be able to do any heavy lifting or loading with his left arm for three months. He was provided with a medical certificate that said he could not work. Mr Panazzolo subsequently sought the prognosis of an orthopaedic surgeon, who also confirmed that he could not work for three months.

At around the three-month mark in December 2021, Mr Panazzolo sent a text message to the owner of Don’s Mechanical asking “if he still had a job at Don’s Auto”. He also informed his boss that his orthopaedic surgeon had cleared him to return to work. Mr Panazzolo was desperate to return to work. Telling his boss that he had been “cashing in cans so I can eat”. But as you will see, Don’s Mechanical would refuse to honour Mr Panazzolo’s medical clearance and instead discriminate against him due to his injury.

Employer denies return to work, requests medical clearance

In January 2021, Don’s Mechanical wrote a letter to Mr Panazzolo. In it, the company requested that one of his medical advisors “clear him for all duties” and provide confirmation that he could “return to normal job duties as a diesel mechanic.”

When this discrimination case was heard by the Federal Circuit and Family Court of Australia, Don’s Mechanical would defend its position of not allowing Mr Panazzolo to return to work. The auto shop argued that it could not offer him light duties as he did not have a driver’s licence. Also, if he had returned to work prematurely, his injury could pose a public safety risk because he could not properly tighten wheel bolts to a school bus.

Employee forced to prove that he can return to work

Unsure of how to handle Mr Panazzolo’s return to work, Don’s Mechanical sought the advice of the Motor Trade Association. The auto shop then contacted the hospital involved in his recovery, asking it to determine if Mr Panazzolo was capable of heavy lifting as it was defined in the MTA’s job dictionary. The hospital reconfirmed that he could not undertake any heavy liftering “for three months from date of operation.”

Don’s Mechanical then requested Mr Panazzolo to obtain confirmation from another medical professional “to clear [him] to return to normal job duties,” based on the requirements of the MTA job dictionary. However, Mr Panazzolo said that he could not afford the fee.Then in February 2021, an orthopaedic surgeon cleared Mr Panazzolo to return to work at full capacity.

Employee resigns after experiencing discrimination for his injury

Don’s Mechanical, however, was not happy with the clearance the orthopaedic surgeon provided. So the auto shop engaged a physiotherapist to assess Mr Panazzolo’s physical capability. The physiotherapist required him to undergo “various static strength tests” to assess his “grip strength, and cardiovascular fitness.”

Based on these tests, the physiotherapist deemed that Mr Panazzolo faced “a risk of aggravation.” However, she deemed him “suitable to return to the role, in a restricted manner.” The physiotherapist said that Mr Panazzolo should not undertake any “heavy sustained or repetitive gripping tasks, and only perform tasks requiring up to a medium-heavy hand strength.” She said that he could only carry up to “22.7 kg on an occasional basis”. That he would need to have a follow-up assessment to be cleared for non-restricted duties.

Don’s Mechanical, however, did not take the physiotherapist’s findings to mean that Mr Panazzolo could return to work. As a result of this stalemate, and facing a desperate financial situation, on 4 August 2021 Mr Panazzolo resigned so that he could receive social security benefits. Mr Panazzolo subsequently made a complaint of disability discrimination with the Australian Human Rights Commission.

Disability discrimination in the workplace – What the law says

Before we get into the ruling of this case, it is important to understand the laws around disability discrimination in Australia. The federal Disability Discrimination Act 1992 outlines that it is unlawful for an employer to discriminate against an employee based on their disability. The Act states that an employer has discriminated against a disabled employee if:

• It does not make reasonable adjustments to accommodate the employee’s disability.
• By not making these adjustments, the disabled employee is treated less favourably than a person without a disability would be treated in similar circumstances.

Federal court rules on disability discrimination case

In his discrimination complaint, Mr Panazzolo argued that Don’s Mechanical had discriminated against him by failing to make reasonable adjustments for his disability.

In its ruling, the Federal Circuit and Family Court of Australia emphasised the principle of “legitimate expectation of allowances.” The Court stated that workplaces commonly encounter illnesses and temporary incapacities. And in such cases, there exists a legitimate expectation that employers will make allowances for such situations and take steps to accommodate affected employees.

The expectation of allowances is particularly relevant when the condition is temporary, as in Mr Panazzolo’s case. The Court found that Don’s Mechanical

“did not attempt to make any adjustments to his duties to accommodate what he would characterise as, at the worst, a temporary disability.”

Federal Court

The Court highlighted that Don’s Mechanical failed to grasp the implications of the physiotherapist’s report, which suggested modifications for Mr Panazzolo’s return to work. These modifications were deemed “fairly modest” and included a staged return, mechanical aids, the ability to seek assistance, and physiotherapy. Despite Mr Panazzolo providing medical certificates indicating his capacity to re-engage in the workplace, the employer disregarded this evidence.

Employer’s discrimination brought to light by court

The Court highlighted the fact that Don’s Mechanical had essentially placed Mr Panazzolo between “a rock and a hard place.” Namely, because the auto shop made him think that he needed to undertake physiotherapy to return to work, but he did not have the income to pay for it.

It was also found that Mr Panazzolo “had done all that he could think of to satisfy the demands of Don’s Auto regarding the provision of a full medical clearance and personally had no funds to secure such a thing”.“Essentially, he was beholden to [the employer’s] personal judgement regarding whether he could or could not return to work and nothing he said or produced would influence this judgement,” the Federal Circuit and Family Court stated.

Employee wins huge discrimination payout

The Court ultimately ruled that Don’s Mechanical had breached the Disability Discrimination Act and had “illegally discriminated against Panazzolo on the basis of his disability.” With respect to damages, the Court noted that evidence was lacking for any psychological injury caused to Mr Panazzolo. Therefore, he was awarded a “modest” $10,000 in damages for hurt, distress and injury to feelings.

The Court also awarded Mr Panazzolo $30,000 plus $4000 interest for economic loss. In all Don’s Mechanical was ordered to pay Mr Panazzolo $44,000 for discriminating against him.

Employers must reasonably accommodate an employee’s disability

The ruling in this case underscores the importance of employers not only refraining from discriminatory practices. However it also actively making reasonable adjustments to accommodate employees with disabilities. The duty to accommodate applies regardless of whether the disability arises from work-related or non-work-related circumstances.

The Court’s decision sends a clear message that employers must engage in proactive efforts. This is to to ensure inclusivity and fairness in the workplace. It also highlights the delicate balance courts must strike between the rights of individuals with disabilities and the operational considerations of employers. It acknowledges that some modifications may be required, but these should not impose undue hardship on the employer.

When disability accommodations are not reasonable

A court case that highlights how workplace adjustments can often be unreasonable is Kristjansson v State of Queensland [2018]. In the case, the employee alleged that his employer, the Queensland Department of Health, had discriminated against him. Specifically, the employee alleged that the Department of Health had failed to implement certain adjustments to accommodate his Obsessive Compulsive Disorder.

The employee held the position of a payroll client services officer within the Department of Health. After the employee went on leave due to concerns of workplace harassment and bullying, the Department of Health sought to facilitate his return to work. It devised a return-to-work process and attempted to find a suitable placement for him within the department.

The Department of Health attempted twice to find a placement for the employee, but failed on both occasions. At that point, the employee alleged that he faced unlawful discrimination. He alleged that the Department of Health declined to make four specific adjustments that he deemed reasonable for his disability accommodation. These were:

• Provision of a support person on the first day of work who could be contacted for concerns and attend meetings.
• Permission to record any discussions on a voice recorder.
• Receiving all directions in writing.
• Providing written notice 24 hours in advance for all meetings.

Ultimately, the Federal Circuit Court ruled that the Department of Health did not engage in unlawful discrimination against the employee. The court noted that even if these adjustments would have resulted in a more favourable treatment for the employee, the burden they placed on the Department of Health would have caused unjustifiable hardship.

Federal court elaborated on the reasons for this decision:

• The court acknowledged that training an additional person to provide support for the employee would place an excessive burden on the employer.
• Allowing the employee to record discussions would erode trust in the workplace, possibly leading to further isolation for the employee.
• Ensuring all directions were in writing was considered impractical and potentially risky. Particularly in emergency situations where quick response is essential.
• Demanding a 24-hour notice for meetings was deemed unrealistic and contrary to the standard operating procedure of a workplace.

The court dismissed all claims made by the employee. Further emphasising the difficulty and impracticality of accommodating his requested adjustments without placing undue strain on the employer.

Resigned employee wins Have you faced discrimination in the workplace?

If you have experienced workplace discrimination or unfair dismissal, do not let your employer off the hook. Get in touch with our team at A Whole New Approach to take action and fight for your rights. AWNA are not lawyers. We have over 30 years’ experience helping Australian workers take action through the Fair Work Commission. We are proud of our staff and the outcomes they get for our clients. Resignation related matters, including being forced to resign, bullied out of the workplace or abandonment of employment by being harassed call us now All adverse action claims, casual employee rights, call us immediatly.

Contact us today at 1800 333 666 for a free and confidential discussion about your situation.

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