Like anti-discrimination statutes that apply in other states and territories in Australia, the Victorian Equal Opportunity Act 2010 requires employers to make reasonable adjustments for employees with disability to enable them to perform the genuine and reasonable requirements of their roles. Failing to make a reasonable adjustment, or dismissing an employee on that basis, may constitute discrimination, unless the adjustment required is unreasonable or the employee could not perform the role’s requirements even with the adjustment.

In Norton v Boroondara CC (2026), the Victorian Civil and Administrative Tribunal (VCAT) considered the approach taken by an employer in relation to the request for a reasonable adjustment in the form of an alternative work vehicle.

Making a request for a reasonable adjustment

The employee in question had a permanent disability – a pain condition that included vulnerability to headaches, and neck and back pain – due to a prior injury sustained at work. His role required frequently driving an employer-issued vehicle. The employer sought to transition the employee to a new, smaller vehicle in a bid to streamline vehicle leasing. The employee sought an alternative vehicle because the proposed vehicle would aggravate symptoms associated with his disability.

The employee supplied medical evidence to support his claim that the new vehicle would exacerbate his symptoms. However, the employer obtained independent assessments that reached conflicting conclusions about his capacity to safely drive the vehicle.

The employer ultimately denied the request for an alternative vehicle, and issued ‘show-cause’ letters before terminating the employee’s employment on the grounds that there were no vehicles in its fleet that he could safely drive.

Did employment termination constitute discrimination?

VCAT found that the employment termination constituted direct discrimination, and that the employer could not rely on the statutory exception available where an employee is unable to perform the genuine and reasonable requirements of a role even with reasonable adjustments.

The employer argued that the employee could not perform the inherent requirements of his position because he could not safely drive vehicles within its existing fleet. However, VCAT considered that the employer had framed the requirement too narrowly. The requirement was not the ability to drive a particular make or model of vehicle, but the ability to drive generally. VCAT cautioned against defining the requirements of a role by reference to an employer's preferred operational arrangements rather than the work required to be performed. In VCAT’s view, the ability to drive a particular fleet vehicle was not an inherent requirement of the position simply because the employer had chosen to standardise its vehicles.

VCAT reinforced that an employer's obligation to consider reasonable adjustments is an active and genuinely consultative process. Although the employer had obtained multiple medical and ergonomic assessments over an extended period, VCAT found that its efforts were largely directed towards determining whether the employee could use its preferred vehicle rather than identifying adjustments that would enable him to remain in the role.

Relying on the statutory exemption

VCAT was critical of the employer's reliance on repeated show-cause processes, observing that threatening termination sits uneasily with a process intended to retain an employee. This was particularly significant because the employer sought to rely on the statutory exception, that the employee could not perform the genuine and reasonable requirements of the role even with reasonable adjustments. The employer bore the onus of proving this and VCAT concluded the evidence fell short of demonstrating that adjustment options had been adequately explored.

Would the reasonable adjustment cause hardship?

The employer raised the additional expense and administrative burden associated with sourcing an alternative vehicle. However, VCAT observed that the employee's existing lease vehicle was nearing the end of its term and considered that a wide range of replacement vehicle options remained available. Given the employer's size and resources, the possibility of a more expensive vehicle did not render the adjustment unreasonable in the circumstances.

Compensation awarded

VCAT awarded the employee more than $900,000 in compensation, including for substantial future economic loss, subject only to an alternative of reinstatement coupled with past loss compensation.

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