Full Federal Court Hands Down Landmark Adverse Action Dismissal Decision Relating To Disability
By Chao Ni, Principal, MST Lawyers
In the recent decision of Western Union Business Solutions (Australia) Pty Ltd v Robinson  FCAFC 181, the Full Federal Court examined the application of section 351 of the Fair Work Act 2009 (FW Act) and clarified the distinction between a disability, its manifestation and the consequence of its manifestation.
Relevant Background Facts
Mr David Robinson was employed as CEO by Western Union Business Solutions (Australia) Pty Ltd (WUBS) between February 2013 until his dismissal on 8 May 2017.
In around September 2016, Mr Robinson went on a period of protracted sick leave, providing WUBS with a series of medical certificates which variously stated that he had “a medical condition”; “significant work-related stress and depression”; and “a major depressive disorder associated with significant anxiety”.
During Mr Robinson’s absence and on three occasions, WUBS requested Mr Robinson to attend for an independent medical assessment. Mr Robinson did not co-operate with these requests, and the independent medical assessment did not take place.
On 8 May 2017, Mr Robinson’s employment was terminated by WUBS. The sole decision-maker was Ms Victoria Pickles (Head of HR). The dismissal letter stated, “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 then commenced legal proceedings in the Federal Court alleging that WUBS had terminated his employment because of his mental disability in contravention of section 351 of the FW Act.
At the primary hearing, Ms Pickles gave evidence that her reasons for dismissing Mr Robinson were because she had believed at the time:
- Mr Robinson had unreasonably failed to co-operate with three attempts by WUBS to arrange for him to attend a company arranged medical appointment.
- Mr Robinson was likely working elsewhere.
- Mr Robinson was not genuinely unwell.
- Mr Robinson’s absence from work would continue indefinitely, in particular given the history of him providing unchanging and brief medical certificates.
Section 351 of the FW Act provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned…”
The First Instance Decision
At first instance, Judge Flick found that:
- The lack of capacity of Mr Robinson to return to work was a “manifestation” of his claimed mental disability, which could not be severed from that disability.
- Though Ms Pickles did not terminate Mr Robinson’s employment because he suffered a mental disability, she did so because of a manifestation of that mental disability (namely his inability to return to work).
- Adverse action was taken against Mr Robinson because of, or at least for a reason which included, a manifestation of his claimed mental disability and hence for reasons which included his mental disability.
Judge Flick’s reasoning drew upon the decision of Judge Katzmann in Shizas v Commissioner of Police  FCA 61. In Shizas, the Assistant Commissioner of the Australian Federal Police had refused to employ Mr Shizas because he had formed the view that Mr Shizas “faced an unacceptable risk of injury in the future” as Mr Shizas suffered from ankylosing spondylitis. Judge Katzmann found that it was “difficult, if not artificial” to draw a distinction between a disability and its manifestations or effects, and decided that the Commissioner of Police had contravened section 351 of the FW Act.
The decision of Judge Flick was successfully appealed to the Full Bench, constituted by Judges Kerr, O’Callaghan and Thawley.
Judge Kerr found that:
- The lack of capacity of Mr Robinson to return to work was not a manifestation of his mental disability, even though it may have been a consequence of it.
- Not every consequence of a disability should be regarded as a manifestation of it.
- A manifestation of a disability includes, for example, symptoms such as lethargy or fatigue. A consequential inability to attend work because of lethargy or fatigue is a result of the manifestation and not a manifestation of the disability itself.
- Given Ms Pickles did not, in this specific case, believe that Mr Robinson was ill and did not have actual knowledge of the manifestations of Mr Robinson’s claimed mental disability, there was no basis for Judge Flick to find that Ms Pickles was motivated by an undisclosed awareness of Mr Robinson’s claimed mental disability when she took action to dismiss him.
Judges O’Callaghan and Thawlley:
- Agreed with the reasoning of Judge Kerr.
- Found that Judge Flick had incorrectly assumed that Mr Robinson’s incapacity for work was caused by an underlying mental condition and then incorrectly reasoned that the incapacity, therefore, must be part of the mental condition such that Ms Pickles took action because of the mental condition, rather than identifying the disability and what it comprised and asking whether Ms Pickles took action because of the disability so characterised.
It is possible to draw a clear distinction between:
- A disability (as described by its name, e.g. depression);
- The manifestations of that disability (e.g. lethargy or fatigue); and
- The consequences of the manifestations of a disability (e.g. inability to attend work or perform certain duties).
Any employer considering taking adverse action against an employee who has a disability should first consider whether it is doing so:
- Because the employee suffers from an impairment; or
- Because the employee suffers from or experiences the manifestations of a disability (e.g. suffers from or experiences anxiety, lethargy or fatigue due to depression); or
- Because of a consequence of a manifestation of a disability, including:
- An employee doing something (e.g. an employee driver falling asleep at the wheel due to fatigue);
- An employee potentially doing something (e.g. there exists a risk that an employee driver could possibly fall asleep at the wheel due to fatigue);
- An employee not doing something (e.g. an employee driver failing to drive a vehicle in a safe manner due to lethargy);
- An employee potentially not doing, or not being able to do something (e.g. there exists a risk that an employee driver will not drive the vehicle in a safe manner due to lethargy).
An employer can take lawful adverse action against an employee because of a consequence of a manifestation.
We believe the Full Court decision in Western Union Business Solutions (Australia) Pty Ltd v Robinson to be correct. Had the decision of Judge Flick been allowed to stand, employers would have had no ability to terminate the employment of any person who is absent from work for an indefinite period if that absence was wholly or evenly partially due to a disability.