In the case of Robinson v Western Union Business Solutions (Australia) Pty Ltd  FCA 1913 the Federal Court has ruled the an Employer cannot fire an employee for taking extended sick leave (related to their mental health) without first establishing that the employee cannot due the inherent requirements of the job.
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). An exception to this is where the employer can show that the employee cannot do the inherent requirements of the job.
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), requested Mr Robinson 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 employer offered multiple appointment dates that Mr Robinson did not access and then when, Mr Robinson finally agreed to attend, Western never finalised the appointment times as they had proposed to do due to a (mistaken) belief that they had offered further appointment times.
Western then 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.
In deciding that Western had unlawfully discriminated against Mr Robinson, the Court said:
• 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” then the burden is on the employer to prove that adverse action was taken because the employee could not meet the inherent requirements of the particular position concerned. The independent medical assessment originally requested might have shown this, if Western had followed through.
• The Court ordered Western to pay $160,000 for dismissing Mr Robinson in breach of those protections.
Having read the judgement, I have to say, it appears to be a very onerous responsibility placed on the employer in a situation where the employee refused multiple requests/opportunities to attend an independent medical assessment
The lessons for employer’s in relation to this decision are to walk carefully 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.
As an added protection, employers could include a clause in all employment agreements which explicitly confers the right to direct an employee to attend an independent examination to assess their fitness for work.
Australian talkback radio broadcaster, Ray Hadley, is being taken to court by former colleague, Chris Bowen, over accusations of serial bullying. The 64-year-old shock jock received notice of the legal action this past Wednesday. This development comes several months after Mr Bowen launched explosive allegations against the veteran broadcaster, claiming that he displayed ‘inexcusable behaviour’ over the 16 years the two worked together at 2GB Radio. Mr Bowen claimed that Mr Hadley was a serial bully whose behaviour was oftentimes ‘uncontrollable’. In a statement released on Thursday, Mr Hadley said he was saddened the matter had become litigious. ‘In recent months I’ve been the subject of intense public scrutiny over allegations regarding my behaviour earlier in my career. I’ve admitted to my previous shortcomings, which are on the public record,’ Mr Hadley said. ‘But I’ve also made no secret of the fact that in recent years I have done everything I can to do better, something which I am sure many of my current colleagues would attest to’, he added. Chris Bowen has engaged John Laxon as his legal representation. Laxon has previously represented former 2GB employee, Richard Palmer, who also accused Hadley of bullying. In that dispute, Hadley reached a settlement with Palmer and was ordered to make an apology on-air.
The Dylan Alcott Foundation, named after the Australian wheelchair basketballer, has launched a new campaign aimed at breaking down barriers for employees living with a disability. The ‘Remove the Barrier’ campaign addresses the unconscious bias and discrimination faced by the one in five Australians who live and work with disability. The campaign was sparked by findings that 90 per cent of employees with a disability record productivity rates equal to or greater than other workers. The Foundation also found that 66 per cent of organisations who employ people with disabilities see positive benefits, such as strengthened workplace morale, greater customer satisfaction and improved productivity. Big-name companies and organisation such as Nike, ANZ, Medibank and QT Melbourne, have given their support to the Foundation’s initiative. Chief Executive Officer at ANZ, Shayne Elliott, said that communities thrive when everyone has equal opportunity. ‘We know there is still work to be done to fully include people with disability in the workplace, so we’re pleased to support The Dylan Alcott Foundation in this important campaign.’