Employee’s Rights and Responsibilities
Employees have a right to:
- choose to disclose their disability prior to applying for positions of employment to discuss specific requirements in relation to their disability or to discuss the inherent requirements of the position and how they will manage them effectively
- have information about their disability treated confidentially and respectfully
- seek information from organisations about equity policies, practices and strategies from potential employers prior to applying for positions of employment. These policies and practices may be available from public organisations and larger private organisations
- appropriate and respectful questioning of their disability for the purpose of identifying work related adjustments required
- have information about their disability used by the employer/supervisor only for the purposes of implementing work related adjustments in the workplace and to assess whether the inherent requirements of the position could be met
- know, as prescribed by the Privacy Act (1988) (opens in a new window) and other state privacy legislation:
- why the organisation is collecting the information
- who and where the information will go
- what other organisations the information may be given to
- the employee can access personal information held about them by the institution
- have their disability taken into account where, and only where, it is relevant and fair to do so. The Disability Discrimination Act (1992) (opens in a new window) makes discrimination unlawful at all stages of the employment process, from recruitment and selection to discrimination during employment or in dismissal
- disclose their disability without fear of being excluded from the position, provided that they have met the inherent requirements of the position. Note: This can be challenged if the employer is unable to provide the work related adjustments required due to 'unjustifiable hardship'. Refer to the Disability Discrimination Act (1992) (opens in a new window) or the Human Rights and Equal Opportunity (opens in a new window) website.
- applicants are responsible for ensuring that they fully understand the inherent requirements of the position and determine whether they have the ability to perform them when applying for a position of employment. Inherent requirements can include qualifications, hours of work per week, travel requirements etc. It should be noted that work related adjustments may often assist the applicant in meeting the 'inherent requirements' of the position. Refer to the Disability Discrimination Act (1992) (opens in a new window) or the Human Rights and Equal Opportunity (opens in a new window) website
- if an applicant has disclosed their disability in their letter of application, resume and/or application form to highlight the need for work related adjustments in the workplace, it is the applicant’s responsibility to be prepared to discuss this when it is addressed, either in the interview, when the position is offered or when employed in the position
- if an applicant has disclosed prior to the interview, they should discuss with the prospective employer any disability specific requirements needed for the interview
- applicants are responsible for identifying appropriate and reasonable work related adjustments when negotiating with the organisation
- to consider and/or obtain assistance in identifying strategies and suggested work related adjustments required to enable the employee to maintain their position of employment
- to recognise that disclosure at the point of crisis may not always ensure that work related adjustments can be easily or successfully implemented due to short time frames and the complexity of issues
- to disclose a disability if it is seen to impact on the job and the health and safety aspects of the work environment. In these circumstances, disclosing a disability is considered the right and proper action as work related adjustments can be investigated to reduce the occupational health and safety issues for the individual and associated work colleagues
- to disclose a disability if the disability is impacting on work performance. This is most relevant if disciplinary procedures are implemented to address poor work performance. Disclosure at this time alerts management about disability issues which requires them to address issues as priority, before commencing with poor work performance procedures. Acting on disability issues includes working with the employer to identify work related adjustments to enable inherent requirements of the position to be met
- if the disability could reasonably be seen to cause a health and safety risk for other people in the workplace, failing to disclose that risk could be a breach of an employees obligations under the Occupational Health and Safety Act.
The Disability Discrimination Act (1992) (opens in a new window) requires that a person's disability should be taken into account where, and only where, it is relevant and fair to do so. The DDA makes discrimination unlawful at all stages of the employment process, from recruitment and selection to discrimination during employment or in dismissal.