Managing an Ill or Injured Employee: Inherent Requirements, Reasonable Adjustments and Unjustifiable Hardship (Practice Note)

This Practical Law Australia Employment Law practice note provides guidance on the process to follow when determining an employee’s ability to perform the inherent requirements of a position having regard to the provisions of the Disability Discrimination Act 1992 (Cth) and under the Fair Work Act 2009 (Cth). An inability to perform the inherent requirements of the position is a defence to a claim of unlawful discrimination under the Disability Discrimination Act 1992 (Cth), and unlawful adverse action and unfair dismissal under the Fair Work Act 2009 (Cth).

Table of contents

  • Disability Discrimination under the Disability Discrimination Act
  • Adverse action under the Fair Work Act
    – Discriminatory conduct under the Fair Work Act
  • Overlap between discrimination under the Disability Discrimination Act and discriminatory conduct under the Fair Work Act
    – Comparison of Disability Discrimination Act and discriminatory conduct under the Fair Work Act
  • Unfair dismissal under the Fair Work Act
  • Key considerations when managing ill and injured employees
  • Guidance for practitioners: process for determining ability to perform the inherent requirements of the position

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