Adverse action: mental disability

Flick J

Facts

  • The Applicant (Mr Robinson) began working for the Respondent (Western Union Business Solutions) on 11th February 2013.
  • Mr Robinson took sick leave for a period of 7 months starting from September 2016 based on his claimed mental disability.
  • 5 medical certificates supporting Mr Robinson’s condition and subsequent inability to work were issued for the period between September 2016- January 2017.
  • Correspondence took place between the parties over a period of three months starting on the 13th of January 2017 through which the Respondents requested that Mr Robinson be assessed by an independent practitioner.
  • Mr Robinson insisted that Western Union obtain medical records from his current general practitioner, psychologist and specialist psychiatrist.
  • On the 27th of February 2017, the Western Union communicated to Mr Robinson that any further refusal of their direction to attend a company specialist appointment to obtain an independent diagnosis would be considered a “breach of his employment contract” for which he could be terminated.
  • On the 8th of March, Mr Robinson emailed Wester Union agreeing to see an independent practitioner in addition to enquiring what terms of his contract would be considered as breached.
  • On the 8th  of May 2017, the Applicant’s employment was terminated.

Issues

[24] The first issue considered was whether Mr Robinson’s diagnosed mental condition could be considered as a “disability” under section 351(1) of the Fair Work Act 2009 (Cth).

[25] Following this the court considered if Western Union Bank’s action in firing Mr Robinson was “adverse action taken because of the employee’s physical or mental disability” under section 351(1) of the Fair Work Act 2009 (Cth).

[73] The final issue under consideration was whether the Respondent’s had breached section 21 of the Competition and Consumer Act 2010(Cth). by acting unconscionably in their dealings with Mr Robinson.

Decisions on the Issues

Mr Robinson’s inability to work was a manifestation of his disability and constitutes a “disability” for the purposes of section 351 of the Fair Work Act 2009 (Cth).[1]“ [26],[38]-[39]

The Respondent’s dismissal of Mr Robinson on 8 May 2017 was the taking of adverse action taken against him because of his disability in contravention of section 351(1) of the Fair Work Act 2009 (Cth). [35]-[41]

  • Adverse action was taken against Mr Robinson for reasons which included the manifestation of his mental disability. [41]-[42]
  • Part of the reasoning process included consideration given to his “capacity” to return to work and accordingly Mr Robinson’s dismissal was adverse action taken because of his disability. [42]

Arguments were not raised regarding Mr Robinson’s capacity to undertake the inherent requirements of his position and accordingly application of section 351(2)(b)(a) need not be resolved in this case. [51]

The Respondent’s conduct cannot be considered unconscionable under section 21 of the Competition and Consumer Act 2010 (Cth). [73]-[79]

  • The decision to terminate Mr Robinson in these circumstances do not constitute conduct in trade or commerce within the meaning of ss 20 and 21 of the Competition and Consumer Act 2010 (Cth). [74]-[79]
  • If pleaded, Mr Robinson would have been unsuccessful in his unconscionability arguments due to the absence of any “higher moral standard than unfairness or unjustness”[2] [91]

[97] Western Union found to have contravened section 351 (1) Fair Work Act 2009 (Cth) in their dismissal of Mr Robinson.

[117] Penalty of $20,000 awarded to the Applicant pursuant to section 546(1) Fair Work Act 2009 (Cth).

[1] Shizas v Commissioner of Police [2017] FCA 61, (2017) 268 IR 71

[2] Parker v Switchee Pty Ltd [2018] FCA 479 [77]

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories