Reasonable and necessary to protect health and safety – WHS exemption applied to discrimination on the basis of presumed mental illness
In McKay v Steggles Pty Ltd  QIRC 328, the Queensland Industrial Relations Commission found the poultry business, Steggles, had acted reasonably to protect health and safety by requiring an employee, presumed to be suffering from post-traumatic stress disorder (PTSD), to produce a medical certificate following a workplace altercation.
The complainant worked at Steggles in meat processing and in close proximity with co-workers. She had a history of verbal altercations, often following incidental physical contact, and had initially disclosed to her employer a diagnosis of schizophrenia and then, subsequently, of PTSD.
Following an incident in which the complainant and a co-worker raised their fists to each other and threatened to fight, the complainant was suspended. Having referred to her PTSD diagnosis in the course of the incident investigation, and having regard to her disciplinary history, the complainant was stood down and asked to produce a medical certificate clearing her as fit to return to her duties.
The complainant produced a letter from a nurse stating that she was able to work part-time to full-time, depending on her preference. When the employer declined to accept the nurse’s letter, the same letter was produced but signed by a psychiatrist.
The employer again declined to accept the letter and requested that any medical certificate specifically consider her duties and working environment. The complainant failed to provide her employer with the information requested and resigned from her employment.
Commissioner Power found that the complainant was treated less favourably because of her presumed impairment (coming within extended definition of attribute under s8 of the Act) as her reporting of a PTSD diagnosis was the reasons for the requirement to produce a medical certificate. The Commissioner also considered, however, that the requirement to provide an appropriate medical clearance was reasonably necessary to protect the health and safety of people at the workplace.
Safety is a paramount consideration for employers. Requiring an employee to demonstrate their fitness for work because of an illness or impairment may be discrimination and it is important to ensure such actions are reasonable and necessary to protect safety so as to avoid unlawful discrimination.