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The Federal Court has ruled the “manifestations” of a mental disability cannot be distinguished from their underlying cause for the purposes of discrimination protections in the Fair Work Act 2009 (Cth) (FW Act).

In the same decision, the Court ordered an employer to pay $160,000 (including a $20,000 pecuniary penalty) for dismissing an employee in breach of those protections.

Background

The FW Act prohibits employers from taking adverse action against an employee (such as terminating their employment) where a “substantial or operative” reason for the termination includes the existence of a protected attribute (such as mental disability).

With increasing awareness of mental illnesses in the workplace, it is more important than ever for employers to understand their obligations when faced with staff who have related or underlying mental health issues.

Robinson v Western Union Business Solutions

Mr Robinson had been absent from work for seven months, including a period of approximately three months’ unpaid leave. He provided multiple medical certificates during his absence, confirming his ‘very significant work related stress and depression‘.

However, with no indication of an expected return date, his employer, Western Union Business Solutions (Australia) Pty Ltd (Western), sought to verify this diagnosis by directing him to attend an independent assessment with a medical specialist of their choice.

This direction led to a protracted disagreement about whether Mr Robinson was required to comply. The situation was exacerbated by the absence of any clause in Mr Robinson’s contract of employment, which could have clarified his obligations in this regard. Ultimately, Mr Robinson reluctantly agreed to attend, but Western never finalised the appointment times as they had proposed to do.

Instead, Western proceeded to terminate Mr Robinson’s employment almost two months later, without an independent medical assessment.

The termination letter referred to the employee’s failure to advise on a return to work date, his lack of cooperation with the employer’s requests and Western’s resulting ‘concerns about [his] capacity to return to work‘, as the basis of Western’s decision. The employee commenced proceedings alleging that the decision to dismiss him was motivated by his mental disability.

The decision

In deciding that Western had discriminated unlawfully, the Court confirmed the following key principles:

  • In the context of discrimination claims under the FW Act, there is no distinction between the ‘manifestations‘ of a disability and the disability itself. In this case, the Court found that the employee’s lack of capacity for work was a manifestation of his disability.
  • If an employer intends to rely upon the key exception that applies to action taken “because of the inherent requirements of a position” they will need to establish that they have actually identified those requirements and obtained evidence which directly establishes they cannot be met. The independent medical assessment originally requested might have furnished the necessary evidence in this case, if Western had followed through.

Key takeaways

  • Employers should exercise caution when managing or dismissing employees with underlying mental health issues that affect their capacity for work. Termination of employment for incapacity should only occur on the basis of reliable and recent medical evidence which has been obtained by specific reference to the inherent requirements of a particular position.
  • A termination letter will be a crucial piece of evidence in any proceedings that may arise from such a termination. It should be drafted carefully to include express reference to the evidence relied upon as proof of indefinite incapacity and avoid mention of any peripheral concerns that may detract from the force of that justification.
  • Employers should include a clause in all employment agreements which explicitly confers the right to direct an employee to attend an examination to assess their fitness for work. This will ensure that employers are more easily able to obtain the information they require to make a fair and informed assessment.

For more information and advice around mental health matters in the workplace, please contact our Employment, Safety and Migration team.

This article was written by Adriana Reina, Senior Associate – Employment, Safety and Migration. 

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Mental health matters: Termination of employee with mental illness was discrimination

19 July 2019
adriana reina

The Federal Court has ruled the “manifestations” of a mental disability cannot be distinguished from their underlying cause for the purposes of discrimination protections in the Fair Work Act 2009 (Cth) (FW Act).

In the same decision, the Court ordered an employer to pay $160,000 (including a $20,000 pecuniary penalty) for dismissing an employee in breach of those protections.

Background

The FW Act prohibits employers from taking adverse action against an employee (such as terminating their employment) where a “substantial or operative” reason for the termination includes the existence of a protected attribute (such as mental disability).

With increasing awareness of mental illnesses in the workplace, it is more important than ever for employers to understand their obligations when faced with staff who have related or underlying mental health issues.

Robinson v Western Union Business Solutions

Mr Robinson had been absent from work for seven months, including a period of approximately three months’ unpaid leave. He provided multiple medical certificates during his absence, confirming his ‘very significant work related stress and depression‘.

However, with no indication of an expected return date, his employer, Western Union Business Solutions (Australia) Pty Ltd (Western), sought to verify this diagnosis by directing him to attend an independent assessment with a medical specialist of their choice.

This direction led to a protracted disagreement about whether Mr Robinson was required to comply. The situation was exacerbated by the absence of any clause in Mr Robinson’s contract of employment, which could have clarified his obligations in this regard. Ultimately, Mr Robinson reluctantly agreed to attend, but Western never finalised the appointment times as they had proposed to do.

Instead, Western proceeded to terminate Mr Robinson’s employment almost two months later, without an independent medical assessment.

The termination letter referred to the employee’s failure to advise on a return to work date, his lack of cooperation with the employer’s requests and Western’s resulting ‘concerns about [his] capacity to return to work‘, as the basis of Western’s decision. The employee commenced proceedings alleging that the decision to dismiss him was motivated by his mental disability.

The decision

In deciding that Western had discriminated unlawfully, the Court confirmed the following key principles:

  • In the context of discrimination claims under the FW Act, there is no distinction between the ‘manifestations‘ of a disability and the disability itself. In this case, the Court found that the employee’s lack of capacity for work was a manifestation of his disability.
  • If an employer intends to rely upon the key exception that applies to action taken “because of the inherent requirements of a position” they will need to establish that they have actually identified those requirements and obtained evidence which directly establishes they cannot be met. The independent medical assessment originally requested might have furnished the necessary evidence in this case, if Western had followed through.

Key takeaways

  • Employers should exercise caution when managing or dismissing employees with underlying mental health issues that affect their capacity for work. Termination of employment for incapacity should only occur on the basis of reliable and recent medical evidence which has been obtained by specific reference to the inherent requirements of a particular position.
  • A termination letter will be a crucial piece of evidence in any proceedings that may arise from such a termination. It should be drafted carefully to include express reference to the evidence relied upon as proof of indefinite incapacity and avoid mention of any peripheral concerns that may detract from the force of that justification.
  • Employers should include a clause in all employment agreements which explicitly confers the right to direct an employee to attend an examination to assess their fitness for work. This will ensure that employers are more easily able to obtain the information they require to make a fair and informed assessment.

For more information and advice around mental health matters in the workplace, please contact our Employment, Safety and Migration team.

This article was written by Adriana Reina, Senior Associate – Employment, Safety and Migration.