Opinion: Adverse outcome for employee termination

By: Maurice Baroni

Termination ‘because of’ a mental disability is likely to be ruled against in court

Opinion: Adverse outcome for employee termination
Maurice Baroni


In a recent decision, the Federal Court has determined that where an employer engages in what is considered "adverse action" because of the manifestation of a disability, rather than because of the disability itself, it has breached Section 351 of the Fair Work Act (the Act)

Under section 351 of the Act, employers are not allowed to take "adverse action", for example, terminating one’s employment, against employees (or a prospective employee), on the grounds of someone’s, race, sex, colour, age or physical/mental disability.

The question which generally arises in such matter is whether the "adverse action" was taken because of one or more of the characteristics described above.

Dealing with employees with mental disabilities has made it increasingly difficult for employers as claims have risen due to situations where employers have taken such action because of the employee’s disability.

The recent Federal Court decision in Robinson v Western Union Solutions (Australia) Pty Ltd highlights the need for a consistently cautious approach to the management of employees with mental disabilities.

Robinson was a client executive at Western Union Business Solutions (Western) since 2013. During September 2016, Robinson was affected by stress, depression and anxiety because of work related reasons. Consequently, he took extended sick leave and provided various doctor’s certificates to Western.

The medical certificates did not disclose, however, when return to work was to be, despite Western making inquiries. The medical certificates simply stated that he is unwell to attend work.

Read about a case involving defining 'casual' employment, here

In January 2017, Western, on numerous occasions, asked him to attend an examination with a company-appointed doctor to determine his state of health and the possibility of a return to work.

Robinson declined and ignored the requests. Later, he advised Western that they should contact his treating doctor if they wanted an update of his condition. Eventually he agreed to attend but Western failed to provide him with details of any organised appointment.

On May 8, 2017, Western Union terminated Robinson’s employment, stating: "Given that you cannot give any indication as to when you will return to work, your unreasonable failure to cooperate with the company’s attempt to obtain up to date, specialist medical advice and in light of the company’s serious concerns about your capacity to return to work, the company has decided to terminate your employment."

Robinson began proceedings alleging that he was terminated because of his disability.

Termination reasoning

The question before the Court was whether the termination was because of his mental disability. The Court found that it was.

The Court said: "The letter of termination and, in particular, the reference in that letter to ‘concerns about Mr Robinson’s capacity to return to work’, has (of course) to be understood in the factual context in which it was written.

"Part of that factual context, as expressed in the letter, was the past history of Mr Robinson’s response to the request made of him to attend medical examinations. Part of that factual context also included the content of the claims being made by Mr Robinson, namely his repeated claims that he was ‘unwell’ and claims that he was ‘suffering a psychiatric condition’ … his claimed ‘psychiatric condition’ formed part of the decision-making process (when Western Union expressed) ‘concerns’ as to Mr Robinsons ‘capacity to return to work’."

The Court went on to find that the termination was because of the "manifestation" of his disability and consequently found Western in breach of section 351 of the Act and ordered Western pay Robinson compensation of $140,000 and imposed a penalty of $20,000. After finding out that

the reason for Robinson’s termination was because of his mental disability, Justice Flick stated that for the purpose of the Act, Western Union must provide a sum amount of $140,000 for compensation. The firm had also been given a penalty of $20,000 because of the unfair dismissal.

What should employers take away?

Managing employees with disabilities has always been tricky. When considering terminating an employee with a disability, it is imperative that the reason for the termination does not include the employee’s disability.

Maurice Baroni is a barrister at Denman Chambers


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