20 Dec 2018

Terminating employment "because of" a mental disability, or its manifestation? Federal Court says it doesn't matter

By Abraham Ash, Timothy Grellman and Max Carter

Employers that engage in adverse action because of manifestations of a disability are likely to have fallen foul of section 351 of the Fair Work Act, with the Federal Court holding the meaning of a "disability" includes the manifestations of a disability.

The Fair Work Act 2009 (Cth) prohibits employers from taking unlawful adverse action against employees, and whether an employer has taken adverse action, such as terminating a person's employment, "because of" a protected attribute such as the person's race, colour, sex, sexual orientation, age, or physical or mental disability, frequently arises in general protections claims. The key question then is whether adverse action was taken "because of" a protected attribute, which requires an assessment of the reasons why the action was taken.

This has proved to be particularly difficult in claims in which an employer allegedly took adverse action "because of" a person's mental disability. The growth in these claims has made it necessary for many employers to reconsider how employees with mental disabilities are managed.

A recent decision of the Federal Court of Australia has again considered whether an employer took adverse action "because of" a person's mental disability, and reminds employers of the difficulties they may face if they do not manage an employee that suffers from a mental disability with appropriate care (Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913).

Federal Court Decision: Robinson v Western Union Solutions (Australia) Pty Ltd

Mr Robinson commenced work for Western Union Business Solutions (Australia) Pty Ltd in 2013 as a "Client Executive". In September 2016, Mr Robinson went on an extended period of sick leave, alleging that he suffered from a mental disability. During his sick leave, Mr Robinson provided Western Union with several medical certificates that recorded he was suffering with work-related stress, depression and anxiety.

On several occasions during Mr Robinson's sick leave, Western Union asked him about his possible return to work date. In response, Mr Robinson provided Western Union with a doctor's certificate and confirmed that he was still unwell, but no indications as to when he might be able to return to work. In January 2017, Western Union asked him to attend an appointment with a doctor appointed by the company, "to give an independent evaluation of [Mr Robinson's] medical condition and to provide a recommendation for the timeframe of [Mr Robinson's] return to the organisation.” Mr Robinson:

  • initially ignored the medical appointments proposed by Western Union;
  • informed Western Union that his own general practitioner and specialists should be contacted for the evaluation of his mental health; and
  • eventually informed Western Union that he was "happy to attend" the independent medical evaluation.

Although he eventually agreed to attending the independent medical evaluation, Western Union failed to contact Mr Robinson to provide him with any details of an appointment.

On 8 May 2017, Western Union sent a Termination Letter to Mr Robinson, setting out its reasons for terminating his employment:

"Given that you cannot give any indication as to when you will return to work, your unreasonable failure to cooperate with the Company's attempt to obtain up-to-date, specialist medical advice and in light of the Company's serious concerns about your capacity to return to work, the Company has decided to terminate your employment."

Mr Robinson claimed that Western Union had taken adverse action against him "because of" his mental disability, constituting a breach of section 351 of the Fair Work Act.

Was the termination "because of" his mental disability?

At the heart of the case was whether Mr Robinson's employment with Western Union had been terminated "because of" his mental disability. Justice Flick held that that it was, in breach of section 351 of the Fair Work Act.

In reaching this conclusion, Justice Flick gave particular consideration to the wording of the Termination Letter:

"The letter of termination and – in particular – the reference in that letter to "concerns about [Mr Robinson's] capacity to return to work" – has (of course) to be understood in the factual context in which it was written. Part of that factual context, as expressed in the letter, was the past history of Mr Robinson's responses to the requests made of him to attend medical examinations. Part of that factual context also included the content of the claims being made by Mr Robinson, namely his repeated claims that he was "unwell" and claims that he was "suffering a psychiatric condition"… His claimed "psychiatric condition" formed part of the decision-making processes [when Western Union expressed] "concerns" as to Mr Robinson's "capacity to return to work"."

He went on to explain how adverse action taken because of "manifestations" of a disability, such as a person's capacity, is captured within the statutory meaning of "because of":

"To employ the language of Katzmann J in Shizas, and on the particular facts of the present case, any lack of "capacity" of Mr Robinson to return to work was but a "manifestation" of his claimed mental disability and a "manifestation" that could not be severed from that disability."

Having found that Western Union dismissed Mr Robinson because of a "manifestation" of his mental disability (that is, Mr Robinson's "capacity" to perform work), Justice Flick concluded that Western Union dismissed Mr Robinson "because of" his mental disability for the purposes of section 351 of the Fair Work Act. Justice Flick ordered that Western Union compensate Mr Robinson in the sum of $140,000 and ordered that Western Union pay a penalty of $20,000.

Conclusion: lessons for employers

In light of Justice Flick's decision, employers should exercise particular caution when managing employees with mental disabilities. Employers that engage in adverse action (such as terminating an employment relationship) because of manifestations of a disability are likely to have fallen foul of section 351 of the Fair Work Act, even if they have not acted specifically because of the disability itself.

When managing employees with disabilities, employers should ensure that the employees' disability is not included as a reason for taking adverse action (such as terminating the employment relationship) against the employee, unless it can be shown that an exception applies (for example, the action is taken because of the inherent requirement of the particular position concerned). Employers should obtain legal advice to ensure that references to the manifestations of the employees' disability in documents such as warning letters and termination letters are avoided.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.