Ill or injured employees – what can employers do?

Can an employer terminate the employment of an ill or injured employee, who has been of work for sometime and is refusing or ignoring requests to attend independent medical examinations. Disability discrimination legislation allows an employer to terminate the employment of an employee where the employee is not able to fulfil the inherent requirements of the role as a result of the disability. However, the application of this defence is often difficult, as it means the employer needs to be sure by reference to compelling evidence (usually independent medical evidence) that this is the case.

In addition, the General Protection provisions of the Fair Work Act 2009 (Cth), prevent an employer from taking “adverse action” against an employee because of a disability. There is no similar inherent requirements defence, although if the employer can argue that the reason the employment was terminated related to the failure of the employee to perform the role (and not the disability itself) then arguably the termination would not offend the FW Act. It is notable that most employers have been reticent to take the ultimate step of dismissal because of the inherent requirement defence, because it is only due to the disability that the individual is unable to work, and as such a strong presumption is created that the dismissal is due to the disability. This is the very issue that was the subject of the decision in Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181.

Background

Mr David Robinson was employed by Western Union Business Solutions (Australia) Pty Ltd (“WU”) as a ‘Client Executive’ from February 2013 until his dismissal on 8 May 2017.

Prior to his dismissal, Mr Robinson took an extended period of sick leave whereby he provided medical certificates that lacked detail with respect to his condition, other than to indicate he was suffering from “a medical condition”, “significant work related  stress and anxiety” and “a major depressive disorder associated with significant anxiety”.  The medical certificates ostensibly did not change from the commencement of his sick leave in around September 2016 to his dismissal on 8 May 2017, did not indicate a positive prognosis nor imagined a regime whereby Mr Robinson would return to work.

During Mr Robinson’s absence and on three occasions, WU directed Mr Robinson to attend an independent medical assessment who would provide a timeframe for Mr Robinson to return to work; a direction Mr Robinson ignored.

Considering Mr Robinson’s role was one that “continued to be required” by WU, Mr Robinson’s refusal to attend an independent medical assessment and the lack of specificity in the Work Cover certificates that were being provided, decided to terminate the employment. WU ultimately terminated Mr Robinson’s employment, providing him with 2 months’ pay in lieu of notice plus accrued but untaken leave entitlements. 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 commenced proceedings in the Federal Court alleging that WU had terminated his employment because of his mental disability in contravention of section 351 of the FW Act.

Relevantly, s351 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:
   1. not unlawful under any anti-discrimination law in force in the place where the action is taken; or
   2. taken because of the inherent requirements of the particular position concerned…

At first instance, WU gave evidence that Mr Robinson was dismissed because:

1. he unreasonably failed to co-operate with three attempts by WU to arrange for him to attend a medical appointment;
2. he was likely working elsewhere;
3. he was not genuinely unwell; and
4. his absence could conceivably be indefinite considering his medical evidence was ostensibly unchanging and did not envision a return to work plan.

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;
• Although Mr Robinson’s employment was not terminated because he suffered a mental disability, it nonetheless was terminated because of a manifestation of that mental disability and his subsequent inability to return to work; and
• 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 drew comparisons with the decision of Judge Katzmann in Shizas v Commissioner of Police [2017] FCA 61 where 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” due to his suffering from a physical disability.  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.

Appeal

The decision of Judge Flick was overturned on appeal by the Full Bench which 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; and

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 WU took action because of the mental condition rather than the incapacity.

The decision of the Full Bench draws 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).

Lessons for Employers

The lesson for any employer considering taking adverse action against an employee, including termination of employment, 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 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 truck driver improperly securing a load due to fatigue);
  • An employee potentially doing something (e.g. there exists a risk that an employee truck driver could possibly fail to secure a load due to fatigue);
  • An employee not doing something (e.g. an employee truck driver failing to secure a load in a safe manner due to lethargy); and/or
  • An employee potentially not doing, or not being able to do something (e.g. the risk that an employee truck driver will not secure a load in a safe manner due to lethargy).

Ultimately, the Full Bench determined that an employer can take lawful adverse action against an employee because of a consequence of a manifestation. Otherwise 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.

This decision effectively means employers can now more confidently manage the employment of long term ill or injured employees, who are unlikely to be able to return to work as a result of the their illness or injury.