These guidelines are subject to
future decisions in the relevant tribunals.
The following guidelines are designed to assist managers
(including supervisors) with their legal and organisational
responsibilities for providing workplaces which allow employees
with disabilities to contribute as full members of their
work teams and to enjoy the same employment rights as other
staff.
Disability is defined very broadly
as any physical, sensory, neurological, intellectual, psychiatric
or learning disability, and includes physical disfigurement,
the presence in the body of disease-causing organisms (for
example the HIV virus) and total or partial loss of part
of the body or a bodily function. It also includes a temporary,
permanent, current, past or future disability.
Reasonable adjustment means changing
some feature of the work situation so that people with disabilities
can do their work more effectively.
For example, it could mean adjusting access to buildings
and rooms, modifying equipment, re-designing jobs or work
areas and implementing more flexible work practices.
It also includes making funds available for staff members
with disabilities when they are travelling at the direction
of UNSW in order to cover any additional travel costs incurred
because of their disabilities
The principle of reasonable adjustment affects decisions
in all areas of employment. It encourages more flexible
and creative ways of working and may assist in improving
conditions for everyone by, for example, improving access
to buildings and rooms.
Both prospective and current staff
with disabilities in all forms of employment (full-time
and part-time; continuing, contract, sessional or other
temporary status, and casual).
Contact the Director, Human Resources,
or nominee, who will arrange as a high priority for the
Workers' Compensation and Rehabilitation Unit to assess
the degree and costs of the adjustment required.
Each type of adjustment is considered on its own merits
and is related to the specific disability and to the essential
requirements of the position. The adjustment will
be assessed on site in the workplace and will involve the
prospective or current employee as one of the main sources
of information on the adjustment needed.
A final decision on whether adjustment is reasonable will
be made by the Director, Human Resources, for adjustments
costing up to $20,000, and by the Vice-Chancellor for adjustments
costing in excess of $20,000.
In line with UNSW's devolved responsibility
for management of staff, financial resources and risk, an
individual claim for reasonable adjustment will be met by
a budget unit on the following basis:
- an individual claim of up to $500 will be fully
funded by the budget unit;
- where the claim exceeds $500 the budget unit
will meet the first $500 plus half the costs for the next
$5,000, that is, a budget unit will only have to pay a
maximum of $3,000;
- the remainder of the cost will be provided by
central UNSW funds.
The Workers' Compensation and Rehabilitation Unit will order
items such as equipment and furniture, and request a funds
transfer from the budget unit for its portion of the cost.
The costs of building modifications, such as ramps, will remain
the budgetary responsibility of the Facilities Department.
It is worth noting that UNSW experience shows that reasonable
adjustment for people with disabilities is normally only
a small cost. In terms of a budget unit, it is most likely
to be equivalent to, or less than, purchasing new or upgraded
equipment, such as furniture and computer equipment, for
any new or existing employee.
Records of all costs for individual reasonable adjustments
will be maintained centrally by the Workers' Compensation
and Rehabilitation Unit, and an annual report on reasonable
adjustments will be forwarded through the Director, Human
Resources, to the Budget Advisory Group to review the effectiveness
of the scheme.
It is not unlawful to discriminate
against a person with a disability if their employment requires
adjustments that impose unjustifiable hardship on the University.
However, UNSW must be able to prove that an adjustment
would cause it unjustifiable hardship.
Factors which would need to be considered include whether
the cost of the adjustment/s would be more than UNSW could
afford, or whether the changes required would have a negative
impact on other employees. These would need to be weighed
against factors such as the benefit that the person with
the disability, and the workplace generally, would gain
from the service or facility that would be provided by the
adjustment. Unjustifiable hardship in employment has not
yet been fully tested in case law.
If an issue of an underlying disability
emerges while an employee is being counselled for unsatisfactory
performance and that disability contributed to the unsatisfactory
performance, reasonable adjustment must be considered as
a strategy. The Director, Human Resources, or nominee should
be contacted immediately for an assessment of reasonable
adjustment as described earlier.
All facets of the application and
interview process will need to accommodate applicants with
disabilities, such as physical access or specialised equipment
on request, unless this causes unjustifiable hardship for
the University. Staff of the Human Resources Department
can assist in establishing the essential requirements of
a position, and provide advice to ensure non-discriminatory
selection processes for applicants with disabilities.
An applicant cannot be excluded from consideration or appointment
because they need reasonable adjustment at work. If necessary,
adjustment requirements in the workplace will need to be
worked out once the selection committee has recommended
a preferred candidate and the process described earlier
will be followed. If, after appropriate adjustment
has been assessed, a preferred candidate with a disability
is unable to fulfill the essential requirements of the job,
a decision can be made not to employ the candidate. A decision
not to employ may also be made if the adjustment is considered
to impose unjustifiable hardship on the University.
UNSW through its managers and staff
can be held responsible under State and Federal legislation
for an act of disability discrimination, including failure
to make reasonable adjustment. Conciliating or defending
a complaint taken to an outside body can be time consuming
and costly in legal fees and compensation. The University
can seek to have managers and other employees joined as
co-defendants in the event of a complaint of disability
discrimination, which could result in personal liability
for the manager or other employees named.
If an employee or potential employee
wishes to contest an assessment, this would take the form
of a complaint of disability discrimination. This could
be done under the University's Discrimination and Harassment
Grievance Procedure for Staff, or the complaint could be
taken to either the Human Rights and Equal Opportunity Commission
or the Anti-Discrimination Board of NSW.
For further information on disability
discrimination or reasonable adjustment, please contact
the Director, Human Resources or the Manager Workplace Diversity.
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