James Hardie refuses to hire man with shoulder injury so pays $30,000 for discrimination

The Fair Work Ombudsman has found building materials company James Hardie discriminated against a job applicant with a shoulder injury by refusing to employ him.

James Hardie signed an enforceable undertaking with the ombudsman and agreed to pay the job applicant $30,000 compensation and revamp its workplace and recruitment policies.

The man applied for a job at James Hardie in 2010 as a business development manager.

James Hardie offered him the job, but failed to tell him the offer was conditional on him satisfactorily completing a medical assessment.

The advertised position did not mention any physical requirements of the job, but the job applicant agreed to the assessment and disclosed a long-term shoulder injury.

A medical assessor reported that because of the injury, there were restrictions and injury risks associated with him performing tasks such as lifting heavy products and climbing ladders and scaffolding at building sites.

The job applicant did not get to see the medical report before James Hardie subsequently withdrew the job offer, despite the Fair Work Ombudsman’s concerns that physical work was not an inherent part of the business development manager’s position.

The Fair Work Ombudsman investigated the matter after the applicant lodged an official complaint and determined that James Hardie’s actions breached the anti-discrimination provisions of Australia’s workplace laws.

Fair Work Ombudsman Nicholas Wilson said it is unlawful to refuse to employ a person on the basis of a physical disability that does not affect the employee’s ability to perform the main tasks associated with the position.

“It is the Agency’s view that this worker was able to perform the main tasks associated with the business development manager position and that it was clearly open to James Hardie to make minor adjustments to the role to avoid him having to perform physically demanding work,” Wilson said in a statement issued by the Fair Work Ombudsman.

“Employers need to ensure that medical assessments are confined to assessing a worker’s ability to perform tasks that are an inherent part of the position and that, unlike James Hardie, they do not jump to conclusions based on the results without adequate consideration and consultation with the worker.

“Employers who have fair and transparent selection processes for recruitment, promotion, training and other business systems will be well placed to cultivate fair workplaces free of discrimination.”

The enforceable undertaking requires James Hardie to apologise to the job applicant and pay compensation for the economic loss and the stress, hurt and humiliation it caused him.

James Hardie also agreed to donate $10,000 to the AED Legal Centre, established by the Association of Employees with Disability to supports workers with disabilities, place an advertisement in The Weekend Australian newspaper detailing its breaches and apologising for them and place anti-discrimination messages on staff notice boards at James Hardie business premises.

Under the terms of the undertaking James Hardie must also develop systems and processes to ensure ongoing compliance with the Fair Work Act, commission training on anti-discrimination laws for its human resources staff and managers with recruitment responsibilities, establish an ongoing anti-discrimination training program and review its recruitment and discrimination policies, in particular in relation to the use of medical examinations, and report the results of the review to the Fair Work Ombudsman.

Sean O’Sullivan, spokesperson for James Hardie, said under the terms of the enforceable undertaking the company was unable to comment.

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