James Hardie signs Enforceable Undertaking after discrimination breach

The Fair Work Ombudsman has announced that building materials company James Hardie Australia Pty Ltd discriminated against a prospective male employee in Perth by refusing to employ him because of a physical disability, the Fair Work Ombudsman has found.

James Hardie has agreed to pay the man $30,000 compensation and revamp its workplace policies to ensure future compliance with workplace laws, following an investigation by the Fair Work Ombudsman.

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

James Hardie offered the man the position, but failed to inform him at the time 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 applicant agreed 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 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.

Following the co-operation of James Hardie, the Fair Work Ombudsman has entered into an Enforceable Undertaking with the company as an alternative to litigation.

As part of the Enforceable Undertaking, the company has agreed to apologise to the worker and pay compensation for the economic loss and the stress, hurt and humiliation it caused him.

James Hardie has 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,
• place anti-discrimination messages on staff notice boards at James Hardie business premises,
• 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,
• 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.