General Protections: Dismissing an Employee With a Disability

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employee with disability

By Renae Harg, Senior Associate and Miette Xamon, Law Clerk

Employer Found to Dismiss Employee Due to Disability

In April 2019, we published an article on the Federal Court decision of Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913. The Federal Court found the employee was dismissed due to his disability.

This decision was appealed to the Full Court of the Federal Court of Australia who set aside the earlier Federal Court decision. The Full Court held that the reasons for termination, being a failure to attend independent medical assessment and concerns about return to work did not breach s351(1) of the Fair Work Act 2009.

Facts in this case

Mr Robinson had not attended work for seven months due to his mental illness. He could not indicate to Western Union when he would be fit to return to work and refused to attend an independent medical assessment arranged by Western Union. Based on these failures and a genuine belief by the employer that Mr Robinson was not unwell, Western Union terminated Mr Robinson’s employment.

The trial judge found that there was no distinction between Mr Robinson’s capacity to return to work and his mental disability, finding that Mr Robinson had been dismissed because of his mental disability in breach of the general protection provisions in the Fair Work Act 2009.

Western Union appealed the trial judge’s decision on the ground that Mr Robinson’s actual mental disability could not be severed from the ‘alleged’ disability that Western Union had no detailed knowledge of at the time of Mr Robinson’s dismissal, and in fact didn’t believe existed. Western Union said they dismissed Mr Robinson because of his incapacity to return to work, not because of his mental disability.

The Full Court ruling

The Full Court disagreed with the trial judge that Mr Robinson’s capacity to return to work was indistinguishable from his disability. Separating the two concepts, the Full Court held that the reasons for termination were failure to attend independent medical assessment and concerns about return to work. The cause of the incapacity, being the disability, was not part of the reason to dismiss Mr Robinson. The Full Court stated, ‘Mr Robinson’s disability was neither subjectively Ms Pickles’ [the decision maker] reason for dismissing Mr Robinson, nor objectively was it what had actuated her conduct. It was not relevantly the, or a, real reason for his dismissal.’

The Full Court stated that section 351 of the Fair Work Act 2009 ‘does not require the conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability.’

Important lessons for employers

The Full Court decision has provided some clarity for employers as to when they can dismiss an employee who has an illness or disability and has been absent for an extended period. However, employers should ensure they are not making the decision to dismiss an employee because of the employees’ illness or disability.

When dealing with an employee who has been on extended leave where a mental illness or disability is known or suspected, employers should act cautiously. For further details, see our article on terminating an employee with mental health concerns.

MDC Legal is a specialist employment law firm with experience in navigating employment situations arising from employees with mental disabilities. We provide expert solutions through high quality, cost effective legal services. Find out more about the MDC Legal Team or Contact Us to discuss your matter.