Scenario #1: Employers v Job Applicants
The Rules
The Act makes it unlawful for an employer to discriminate against a job applicant on the ground of disability in relation to:
making arrangements for determining who should be offered employment,
determining who should be offered employment, or
offering employment on certain terms.
Specific Exceptions
The below exception applies to when an employer is determining who should be offered employment.
IF –
taking into account:
the job applicant’s past training, qualifications and experience relevant to the particular employment, and
where the job applicant is already employed by the employer:
the job applicant’s performance as an employee, and
all other relevant factors that it is reasonable to take into account,
the job applicant, because of their disability would:
be unable to carry out the inherent requirements of the particular employment, or
in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer,
THEN – the discrimination will not be unlawful.
To determine whether there is an ‘unjustifiable hardship’, all relevant circumstances of the particular case need to be taken into account including the:
nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and
effect of the disability of a person concerned, and
financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
General Exceptions
There are general exceptions to this scenario. They relate to:
Employment for a private household.
Where the total number of employees (except for those employed within the employer’s private household) is ≤ 5.
Employment by a private educational authority.
Note: In relation to exception relating to the total number of employees being ≤ 5, a corporation is taken to be the employer of the employees of a related body corporation (as defined in the Corporations Act 2001).