Too sick to see a doctor?

An employer has been hit with a massive damages bill after dismissing an employee who had been absent on sick leave for almost eight months. The employer’s decision was taken on the basis that the employee refused to provide up-to-date medical information, and the employer’s ongoing concerns about the employee’s capacity to return to work. However, the Federal Court found that the employee was dismissed because of his mental disability, in breach of the discrimination provisions in the Fair Work Act 2009 (Cth).

In issue

• Whether the employee’s dismissal was ‘because of’ his ‘mental disability’
• Whether the action was ‘taken because of the inherent requirements of the particular position concerned’

The background

David Robinson was employed by Western Union Business Solutions (Australia) Pty Ltd (‘Western Union’) as a Client Executive from February 2013. His employment was uneventful save for two separate disputes with his manager around mid to late 2015. In mid-September 2016 Mr Robinson took sick leave on the basis that he was suffering from a mental disability.

Mr Robinson provided a number of medical certificates and Work Cover certificates to Western Union. These medical certificates referenced work-related stress and depression as the causes of his absence. Due to Mr Robinson’s prolonged absence, Human Resource personnel at Western Union began contacting Mr Robinson regarding a return date. A series of emails were exchanged between the parties with no resolution.

In January 2017, Western Union sent further requests for a return date to work and a request that Mr Robinson attend an independent medical evaluation arranged by Western Union. Mr Robinson refused the request advising that he had his own doctors and specialists which provided a sufficient basis for his absence. After almost 8 months of sick leave, Western Union terminated his employment.

Mr Robinson commenced a claim alleging that Western Union:

1. breached the discrimination protections under the FW Act s351 (‘FW Act’); and
2. engaged in unconscionable conduct under the ACL.

He was successful on the first ground.

The decision at trial

The Human Resources Director, Ms Pickles gave evidence that she caused the letter of dismissal to be sent to Mr Robinson because:

1. there was unreasonable failure by Mr Robinson to cooperate with Western Union’s attempts to obtain up-to-date specialist medical evidence; and
2. there were concerns as to Mr Robinson’s capacity to return to work.

There was no dispute that the dismissal constitutes ‘adverse action’ under the Act; however, the crux of the claim centred on whether the adverse action was taken ‘because of’ Mr Robinson’s disability. The Court accepted that a disability includes the manifestations of that disability.

As the letter of dismissal cited concerns about Mr Robinson’s capacity to return to work, the Court found that his lack of capacity to work was a manifestation of his mental disability. As the manifestation could not be disentangled from the disability itself, it was held that Western Union had breached the Act and took adverse action because of Mr Robinson’s mental disability.

The exception advanced

Western Union attempted to rely on the statutory exception to discrimination, namely ‘action taken because of the inherent requirements of the particular position concerned’.

However, the Court found that to enliven such an exception would require forming a view as to the inherent requirements of the position and deciding whether Mr Robinson had no capacity to fulfil that position.

The Court went on to recognise that had the independent medical evaluation been undertaken, such evidence obtained from the examination would have assisted in formulating a view on Mr Robinson’s ability to fulfil the inherent requirements of his pre-injury role.

Implications for you

Great care must be taken when managing an employee who is ill or injured. It is critical to obtain up-to-date medical information in relation to the employee’s ability to perform the inherent requirements of their job. If unsure, employers should seek legal advice before taking further action.

Image credit: ©stock.adobe.com/au/anyaberkut

*Julie Dang is a lawyer with Barry.Nilsson. Lawyers. This story has been reproduced with their permission.