Mullaney v Qube Ports: The Evidentiary Burden of Reasonable Adjustments in Disability Claims

Overview of Reasonable Adjustments in Disability Claims

Mullaney v Qube Ports Pty Ltd (Federal Court, 30 October 2025) clarifies the legal threshold for establishing disability discrimination under Section 5(2) of the Disability Discrimination Act 1992 (Cth). Judge Nicholas Manousaridis’s decision reveals a critical vulnerability in return-to-work management: the failure to identify and propose specific reasonable adjustments before termination leaves employers legally exposed, whilst simultaneously denying workers their statutory protections.

The Facts

Brendan Mullaney, a 58-year-old stevedore employed by Qube Ports at Port Kembla since 2007, sustained injuries in workplace incidents (June 2017 and December 2019), followed by surgical intervention (August 2020). He returned to modified duties, was certified fit for pre-injury work by his treating physician (September 2021), but subsequently refused lashing work when rostered.

An independent medical examination by Dr Sabetghadam concluded he could not “return to his pre-injury stevedoring duties without risk to his health.” Qube terminated his employment on 1 June 2022. Mullaney alleged disability discrimination under Section 15(2)(c) of the Disability Discrimination Act.

The Court’s Finding: Section 5(2) Requirements

The critical statutory test under Section 5(2) requires proof that:

(a) The discriminator failed to make reasonable adjustments for the person with disability; and

(b) That failure resulted in less favourable treatment because of the disability.

Judge Manousaridis held:

“I am not satisfied that in dismissing [the worker] from his employment Qube discriminated against him within the meaning of section 5(2) of the DD Act; that is because [the worker] did not, before Qube terminated [his] employment, suggest to Qube any reasonable adjustments Qube could have made.”

The critical finding: the applicant bore the evidentiary burden of identifying specific reasonable adjustments. Neither the amended claim nor evidence at trial particularised what adjustments Qube should have made.

Why the Claim Failed

Failure 1: No Particularised Adjustments in Pleadings

The pleaded case alleged discrimination but did not specify what adjustments should have been made, how they would enable stevedoring work, or why they were reasonable (feasible, proportionate, effective).

Failure 2: No Evidence of Feasible Modifications

At trial, Mullaney’s representative suggested belatedly that Dr Ooi’s certificate (issued after fitness-for-work processes had commenced) could have sufficed. However, the “adjustments” were merely restrictions (avoid squatting, heavy lifting), not workplace modifications. No evidence explained how these restrictions could be accommodated whilst maintaining operational requirements.

Failure 3: Comparator Analysis Favoured the Employer

The Court accepted that Qube would have dismissed any worker—disabled or not—unable to squat, kneel, lift, carry heavy loads, or push with force. These physical demands were inherent requirements of Grade 2 stevedoring. Accordingly, the decision was not discriminatory; it was operational necessity.

What Should Have Been Proposed

A competent HSE approach could have identified several adjustments:

Task Reallocation Within Existing Role

Grade 2 stevedoring encompasses 27 distinct tasks. Mullaney’s skills analysis identified competencies in forklift operation, mobile machinery, clerk duties, and team leader roles. Restricting Microster allocations (the system used to assign tasks) to exclude lashing, kneeling work, and heavy handling would have negligible cost and operationally isolated the physical demands.

Role Redesign

Creation of a specialised role focusing on forklift operations, clerical support, vehicle operations, and supervisory tasks would have maintained skill utilisation whilst eliminating aggravation risk. The operational impact—requiring alternative lashing-capable workers—was manageable and documented feasible.

Modified Stevedoring (Non-Vessel Work)

Restriction to wharf-based forklift work, warehouse duties, administrative support, and training roles would have completely eliminated high-risk manual handling whilst utilising existing functions within the organisation.

The Critical Gap: None of These Were Formally Proposed

No evidence was presented that Qube was informed of any specific adjustment before termination. This silence proved fatal to Mullaney’s claim.

Industry Lessons

For Employers: Procedural Rigour Is Essential

Qube’s success rested on evidence-based decision-making: independent medical assessment, role analysis (Job Dictionary), demonstration of physical demands, and operational context. Employers who terminate without articulating why specific adjustments are infeasible create discrimination claims—even where termination may be justified.

For Workers and Representatives: Proactivity Is Statutory Requirement

Mullaney’s claim failed because he did not propose adjustments before termination. Silence is not strategy; it is evidentiary failure. Workers and their representatives must engage employers early with specific, feasible adjustment proposals supported by medical and operational evidence.

For HSE Professionals: Return-to-Work Requires Active Problem-Solving

The HSE professional’s function is not to facilitate employer decisions but to conduct evidence-based problem-solving. This includes:

• Comprehensive role and task analysis
• Active liaison with medical professionals (providing Job Dictionary, requesting specific functional assessments, quantifying risk)
• Transparent feasibility assessment (cost, operational impact, safety implications, duration)
• Documented conversation facilitating worker-employer adjustment discussion

Return-to-work is not delegated to occupational health professionals. It is a collaborative HSE responsibility.

Key Principle: Medical Evidence Must Be Functional

Judge Manousaridis noted that Dr Sabetghadam’s opinion, based on history and video observation without imaging or specialist consultation, lacked diagnostic rigour. Generic restrictions (“avoid heavy loads”) without operational context are insufficient for termination decisions.

Medical practitioners should receive:

• Detailed position descriptions or Job Dictionary
• Video or photographic evidence of tasks
• Frequency and duration data
• Specific functional questions (not Yes/No clinical assessments)
• Alternative task options for assessment

Conclusion: The Standard Is Now Clear

Section 5(2) disability discrimination claims require specific identification of reasonable adjustments, evidence of feasibility, proof of employer notification, and causal link between failure and less favourable treatment. Without these, claims fail.

For HSE professionals, the implication is unambiguous: proactive, documented, evidence-based return-to-work management is not optional. It is a legal and ethical imperative.

The cost of inaction – for workers, employers, and HSE professionals – is substantial. The cost of competent practice is minimal.

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About the Author

Aiden Nawaz
WHS Consultant & Safety Auditor | HSE Direct

Aiden Nawaz holds a Bachelor of Laws (LLB) and a Master of Occupational Health & Safety, and is a certified ISO 45001 Lead Auditor. With hands-on experience across construction, mining, and renewable energy sectors in Australia, Aiden specialises in WHS management systems, compliance auditing, incident investigation, and contractor safety management.

Sydney, NSW  |  HSE Direct

Credentials & Affiliations:

Bachelor of Laws (LLB)
Master of Occupational Health & Safety
ISO 45001 Lead Auditor
ICAM Lead Investigator
Member of Various Organisations
High-Risk Work | Construction & Mining Safety Specialist

This article is intended as general WHS guidance only and does not constitute legal advice. For site-specific compliance support, contact HSE Direct.

Last reviewed: April 2026