01 Sep 2015

Federal Circuit Court decision on sick train driver’s sacking was off track, says Federal Court

By Ruth Thevathasan

The RailPro decision gives some comfort to employers unaware that the reason for an employee’s incapacity to perform work was a disability.

In a decision welcomed by employers, the Federal Court in RailPro Services Pty Ltd v Flavel[1] has clarified that dismissing an employee for conduct that may be symptomatic of a disability does not automatically mean that the reason for dismissal is the employee’s disability in contravention of section 351(1) of the Fair Work Act 2009 (Cth).

Background facts

Colin Flavel was a train driver who was directly involved in a train accident and, as a consequence, suffered from post-traumatic stress disorder (PTSD) and depression. That condition was not, however, diagnosed until after he was dismissed from his employment.

An investigation into the accident then ensued, which found that Mr Flavel was culpable. He was given a final warning and directed by RailPro to attend a formal assessment of his competency, which required him to drive a train while being observed.

During that assessment, Mr Flavel appeared nervous. He told the assessor that he felt like being sick and that he could not drive the train. The assessor did not consider Mr Flavel’s behaviour to be anything other than a typical attack of the nerves in a high stress situation, particularly since at that time RailPro was unaware that he was suffering from PTSD.

Shortly after Mr Flavel’s refusal to undergo the assessment, he was dismissed from his employment. The termination of employment letter provided two reasons for his termination, relevantly in this case that by not undergoing the assessment, he did not demonstrate the level of competency required to perform the requirements of his job. 

Legal proceedings instituted

Mr Flavel lodged proceedings in the Federal Circuit Court[2] which included, among other things, a claim that he had been terminated from his employment because he had a disability and that RailPro had, therefore, contravened section 351(1) of the Fair Work Act.

Decision of the Federal Circuit Court

In the first instance decision, the Federal Circuit Court held that RailPro had discriminated against Mr Flavel in contravention of section 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (DDA) and concluded that, by doing so, RailPro had thus contravened section 351(1) of the Fair Work Act.

In reaching this conclusion, the trial judge applied the statutory test of discrimination under the DDA to the facts of the case by asking whether in dismissing the employee, the employer had treated the employee less favourably than any other employee in those circumstances who did not have a disability.

The trial judge held that RailPro “must have known or reasonably known” that the symptoms suffered by Mr Flavel when he refused to undergo the competency assessment were connected with his disability. This was in spite of the fact that RailPro was not actually aware that Mr Flavel was suffering from PTSD (as he had not, at the time of termination, been diagnosed with the condition) nor was RailPro able to discern that Mr Flavel’s behaviours may be connected to some type of psychological trauma.

Appeal to the Federal Court and decision

On appeal, however, Justice Perry of the Federal Court found that the trial judge had fallen into error by mistakenly applying the principles of disability discrimination under the DDA to the construction of disability discrimination under section 351(1) of the Fair Work Act. This error led the trial judge effectively off-track and toward an incorrect conclusion that the dismissal of Mr Flavel was unlawful. This incorrect conclusion occurred in the following key respects.

Relevant inquiry: why was adverse action taken?

First, the only relevant inquiry a court is asked to make under section 351(1) of the Fair Work Act is: “why was the adverse action taken?”. The trial judge’s consideration of the comparative treatment of Mr Flavel against how RailPro might have treated any other employee without a disability and who behaves in a similar manner (a methodology based on DDA considerations) was therefore, in the context of the claim, both unnecessary and speculative.

Employer’s burden to disprove employee’s claim

Second, by reason of section 361 of the Fair Work Act, there is a statutory presumption in favour of the adverse action having been taken because of a prohibited reason. The employer, therefore, bears the burden of disproving an employee’s claim. As clarified by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[3] this burden will require the employer to put on direct evidence as to what was in the mind of the decision maker when it made the decision to terminate the employee’s employment.

The conclusion reached by the trial judge that RailPro “must have known or ought reasonably have known” that Mr Flavel’s refusal to drive the train was symptomatic of his disability was not possible to draw from evidence relevant to what was actually in the mind of the decision maker when he decided to terminate Mr Flavel’s employment. Indeed, as Heydon J observed in Barclay,[4] to search for anything but the actual reason for the decision would make it virtually impossible for an employer to ever rebut the statutory presumption. Specifically Heydon J said:[5]

"Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? … "

The fact that the RailPro decision makers were not aware of Mr Flavel’s disability demonstrates that it was impossible for RailPro to have made its decision for that reason.

Disability must be substantial and operative reason

Third, the employee’s disability would need to be the substantial and operative reason for his dismissal. However, no such qualifier is attached to the reason for less favourable treatment under the DDA, which means that a finding of disability discrimination under the DDA does not lead to the conclusion that there has also been a contravention of section 351(1).

Incapable of fulfilling inherent requirements of the job

Finally, the trial judge failed to consider the evidence adduced by the decision makers that the reason for dismissing Mr Flavel was because he was unable to drive a train and, therefore, fundamentally incapable of fulfilling the inherent requirements of his role. Under section 351(2) of the Fair Work Act this reason would militate against the dismissal constituting discrimination.

Implications of the decision

While RailPro was successful on these discrete grounds of the appeal, ultimately it failed to rebut the statutory presumption on another ground.[6] Nevertheless, the decision is largely a positive one for employers. It confirms that an employer will not ordinarily be hamstrung by the operation of section 351(1) of the Fair Work Act from ensuring that its enterprise is run by competent individuals in circumstances where the employer was unaware that the reason for an employee’s incapacity to perform work was because of a disability.

Employers must remain mindful, however, that the DDA will continue to operate such that, when faced with an employee who acquires a disability that affects their performance of work, the employer will be required to make reasonable adjustments[7] or else be confident that no such reasonable adjustments are able to be made that would ensure those employees are able to carry out the inherent requirements of their jobs.[8]


[1] RailPro Services Pty Ltd v Flavel [2015] FCA 504.Back to article

[2] Flavel v RailPro Services Pty Ltd [2013] FCCA 1189.Back to article

[3] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 517; 90 ALR 647; [2012] HCA 32.Back to article

[4] See, above, n 3 at 546.Back to article

[5] See, above, n 3 at 546.Back to article

[6] Mr Flavel also claimed that when RailPro terminated his employment, it did so because he had exercised a workplace right to protect his safety and the safety of others when he refused to drive the train for the assessment. Justice Perry held that while Mr Flavel’s competency was a reason for terminating Mr Flavel’s employment, it was not a sufficient enough reason to rebut the presumption that the substantial and operative reason for the dismissal was the exercise of a workplace right. RailPro was therefore found to have contravened s 340(1)(a) of the Fair Work Act.Back to article

[7] See s 5(2) of the Disability Discrimination Act 1992 (Cth).Back to article

[8] See s 21A(1)(b) of the Disability Discrimination Act 1992 (Cth).Back to article

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