09 May Adverse Action and Disability
The case of Western Union Business Solutions (Australia) Pty Ltd v Robinson  FCAFC 181 is a clarification of the law in relation to adverse action in breach of general protections provisions of the Fair Work Act 2009 (Cth) (Act).
The Appellant employed the Respondent from February 2013. From September 2016, the Respondent commenced personal leave, giving a series of medical certificates to the Appellant that including various reasons why he could not work related to a non-specific mental illness, and Work Cover certificates identifying he had “no current work capacity for any employment”.
On 13 January 2017, the Appellant requested the Respondent attend an independent medical assessment to facilitate a return to work. The Respondent did not attend a medical assessment.
On 8 May 2017, the Appellant terminated the Respondent’s employment for reasons including:
a. The Respondent had unreasonably failed to attend an independent medical examination.
b. Concerns or uncertainty of the Respondent’s capacity to return to work.
The Appellant’s grounds of appeal, included:
a. The primary judge made an error “by finding that the [A]ppellant took adverse action against the [R]espondent because of his mental disability when it dismissed him for reasons that included concerns about the [R]espondent’s capacity to return to work” (Ground 1).
b. The primary judge made an error “by finding that the ‘manifestation’ of the [R]espondent’s claimed mental disability could not be severed from his alleged disability in circumstances where the decision maker did not know whether the Respondent, as a matter of fact, had a mental disability” (Ground 3).
The judgment of Kerr J and the joint judgment of O’Callaghan and Thawley JJ dealt with Ground 1 and Ground 3 together. Both judgments found in favour of the Appellant. The appeal grounds focused on the law in section 351(1) of the Act:
“An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.“
Broadly, the issues to be determined by the Court were whether:
a. The Respondent’s capacity to return to work was a manifestation of his mental disability; and
b. The decision to terminate the Respondent in the mind of the Appellant was because of his mental disability.
On the first issue, the Court determined a disability will not always be linked to a manifestation of the disability. This is considered on a case by case basis. O’Callaghan and Thawley JJ provided:
“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.”
On the second issue, the Court found the Appellant had terminated the employment of the Respondent for reasons other than mental disability. The reasons included the Respondent had:
a. failed to attend work for seven months;
b. refused multiple opportunities to submit himself to an independent medical assessment; and
c. gave no indication of when he would return to work.
Written by Angus Macpherson.
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