The Federal Court has provided reassurance to HR practitioners that it can be reasonable to dismiss a worker with incapacity to perform the inherent requirements of a role, even where that incapacity may be connected with a disability. However it’s not quite as simple as it sounds…

Extended absence due to stress and depression

In 2018, a claim was brought against Western Union Business Solutions alleging that it had contravened section 351 of the Fair Work Act 2009 (Cth) (Fair Work Act), by taking adverse action because of a physical or mental disability.

The employee was dismissed after a seven-month absence from work. The absence was supported by a series of medical certificates variously referring to a ‘medication condition’ and diagnoses of work related stress and a depressive disorder. During the extended absence, a number of requests were made requesting attendance at a medical practitioner nominated by Western Union for an independent medical evaluation. This assessment did not occur, and ultimately, on 8 May 2017, Western Union terminated the employee’s employment. The termination letter cited, among other things, the employee’s absence (including on unpaid leave), his refusal to attend a medical assessment, and ongoing concerns about the employee’s capacity to return to work.

The decision: the dismissal was based on a “manifestation” of a disability

On 30 November 2018, Federal Court Justice Geoffrey Flick found that, while the HR Manager genuinely believed that the dismissal was not because of a disability, the dismissal was motivated, in part, by the “manifestation” of the employee’s claimed mental disability. It therefore followed that Western Union had under s351 of the Fair Work Act discriminated against Mr Robinson due to his “mental disability”. Western Union was ordered to pay $140,000 and an additional $20,000 fine.

The appeal – a question of capacity to work

On appeal, the Full Court found that determined that no such discrimination had occurred. In particular, Justice Kerr noted that the HR Manager was not aware of any manifestation of a disability, and indeed did not believe that the employee was unwell.

The Full Court also rejected the argument that the executive’s incapacity was part of his disability. Rather, the Court held that a distinction can be drawn between an underlying medical condition and the incapacity that results. In doing so, the Court found that the reason for dismissal related solely to the employees capacity or willingness for work, and not because of any underlying disability.

Importantly, the Court noted:

“not every consequence of a disability which is to be regarded as a ‘manifestation’ of the disability such that the consequence is to be regarded as comprising a part of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes… For example, behaviours associated with a particular mental illness might be shown to be a ‘manifestation’ of the illness (harmoniously with the definition of “disability” in the Disability Discrimination Act). However, the fact that the collection of attributes which comprise the disability result in incapacity for work would not necessarily compel the conclusion that the incapacity for work was part of the disability as opposed to being a consequence of having the disability.”

A reminder to employers

This decision is significant as it confirms that employers can lawfully dismiss an employee in circumstances where this is a question about their capacity or willingness to work, even where this is an asserted underlying medical condition. The decision shows that the Courts will draw a distinction between a disability and the consequences of that disability as it relates to the workplace.

The decision also provides cautionary reminder of the need to be mindful that a disability is more than just the ‘label’ of the condition, but also extends to the manifestations of the particular condition. For example, in the case of a depressive illness, it may well be the manifestations include symptoms such as anxiety or sleeplessness. These ‘manifestations’ cannot form part of the operative reason for decisions adverse to employee’s interests.

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 (23 October 2019)

The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.