By Mark Cox, Director and Renae Harg, Senior Associate
Federal Court Ruling Highlights the Complexity of Terminating the Employment of an Employee with Mental Health Issues
The Federal Court ruling in Robinson v Western Union Business Solutions (Australia) Pty Ltd  FCA 1913 highlights the complexities in terminating the employment of unwell employees, including employees with mental health issues.
An employer has been required to pay an employee $140,000 in compensation and $20,000 in penalties after the Federal Court determined that he was terminated from his employment because of his workplace-related depression and anxiety.
Mr Robinson, an account executive at Western Union Business Solutions, had been absent from the workplace for almost eight months at the time of his termination, due to work related stress, anxiety and depression.
If you’re managing an unwell employee or an employee with a disability, get the facts on workplace rights and obligations to ensure you, and your employee are protected.
What steps did Western Union take before terminating Mr Robinson’s employment?
Western Union sent Mr Robinson repeated correspondence asking him about his return to work status and directing him to attend an independent medical assessment. Mr Robinson initially refused to attend an independent assessment, stating a report from his treating doctors was sufficient. When Western Union advised Mr Robinson that the requirement to attend an independent medical assessment was a lawful and reasonable direction and failure to attend may provide the employer with a reason for dismissal, Mr Robinson stated he would be happy to attend any medical assessment required. Western Union advised Mr Robinson that he would be provided with new dates for a medical assessment, which it never provided. In May 2017, Mr Robinson’s employment was terminated.
Mr Robinson’s employment was terminated by Western Union for the following reasons:
- he could not give any indication as to when he could return to work;
- his unreasonable failure to cooperate with the Company’s attempts to obtain up to date, specialist medical advice; and
- the Company’s serious concerns about his capacity to return to work.
Mental disability played a part in the decision to terminate employment
The Court found it was reasonable for Western Union to reach a conclusion that Mr Robinson had failed to cooperate. However, it was the final reason, being the Company’s serious concerns about Mr Robinson’s capacity to return to work, that the Federal Court found contravened the general protections provisions of the Fair Work Act 2009, section 351(1).
The Court found that adverse action was taken against Mr Robinson because of his mental disability. It was said that HR Manager made the decision to terminate Mr Robinson’s employment because of, or at least for, a reason which included his mental disability. The HR Manager’s concerns about Mr Robinson’s capacity to return to work were because of Mr Robinson’s claimed psychiatric condition. The psychiatric condition had formed part of the decision making processes of the HR Manager when deciding to terminate Mr Robinson’s employment.
Inherent Requirements exception does not apply
The Court also found that Western Union could not rely on the “inherent requirements” exception in 351(2)(b) of Fair Work Act 2009, where discrimination is not unlawful if the employee is unable to carry out the inherent requirements of the job. The court held that Western Union could not rely on this exception due to a substantial lack of evidence regarding Mr Robinson’s inability to perform the inherent requirements of his position. The court reinforced that it is inability not difficulty that must be proven. The court identified the difficulties in precisely defining what constitutes the ‘inherent requirements’ of a position but it ultimately decided it was not necessary to address the issue in this matter.
What this means for employers
This decision highlights the difficulty for employers in managing unwell employees. Before terminating the employment of an unwell employee, including an employee with mental health issues, employers should take all reasonable steps to get independent medical information in relation to an employee’s fitness for work and their ability to perform the inherent requirements of their role. For more information on when you can direct an employee to attend a medical assessment, please see our article Directing an Employee to Attend An Independent Medical Assessment
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 X v Commonwealth  HCA 63, (1999) 200 CLR 177.