In an important decision last month, the Full Court of the Federal Court of Australia upheld the appeal of an employer who claimed, in dismissing a client executive who had been absent from work for 7 months due to mental health issues, it had acted lawfully and not dismissed him because of his illness.
The judge at first instance had found the employer liable for breaching the ‘adverse action’ provisions of the Fair Work Act 2009 (Cth) (FW Act) because the employee’s mental illness could not be disaggregated from the employer’s reasons for dismissal. This decision was seen by many as setting a dangerous precedent and employers should welcome the clarification provided by the Federal Court appeal bench.
Mr Robinson was employed by Western Union Business Solutions (Australia) Pty Ltd as a client executive in February 2013. In September 2016, he went on sick leave providing medical certificates stating he was unable to work due to to a medical condition, significant work related stress and depression, and a major depressive disorder associated with significant anxiety.
Eventually, the Company terminated Mr Robinson’s employment, the letter of termination from the Head of Human Resources for Australia and New Zealand, Victoria Pickles, stating:
“You have not attended work for a period of 7 months, with 3 of these months constituting unpaid leave. In that time, you have refused multiple, reasonable attempts by [the Company] to attend an independent assessment by … the Company’s nominated practitioner.
Given that you cannot give any indication as to when you will return to work, your unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice and in light of the Company’s serious concerns about your capacity to return to work, the Company has decided to terminate your employment.”
First instance decision
The primary judge awarded Mr Robinson $140,000 in compensation holding that:
- in the absence of any other reason going to Mr Robinson’s capacity to return to work, the reference to his capacity in the termination letter “can be nothing other than a concern occasioned (at least in part) by the claimed psychiatric condition”;
- any lack of capacity to return to work was a manifestation of his claimed mental disability, and could not be severed from that disability;
- therefore, Mr Robinson was dismissed ‘because of’ his mental disability, which breaches the FW Act.
The evidence of the ‘decision maker’ in this case, Ms Pickles, was critical to the success of the appeal. Ms Pickles vehemently denied terminating Mr Robinson’s employment because he suffered a mental disability and stated she found this allegation ‘insulting’. The Full Court thoroughly scrutinised, and ultimately accepted, Ms Pickles’ evidence, unanimously finding that:
- the ‘serious concerns’ referred to in Ms Pickles’ termination letter were simply that Mr Robinson had not attended work for a period of seven months, refused multiple opportunities to submit himself to an independent medical assessment and given no indication of when he would return to work. Those serious concerns led Ms Pickles to doubt that Mr Robinson would in the future be capable of fulfilling the inherent requirements of his employment: that is, turning up for work;
- the primary judge wrongly assumed that Mr Robinson’s incapacity for work was caused by an underlying mental condition and then wrongly reasoned that the incapacity must therefore 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 then asking whether Ms Pickles took action because of the disability so characterised;
- having accepted Ms Pickles’ evidence that she did not terminate Mr Robinson’s employment because of his mental disability, the primary judge should have found Ms Pickles’ concern related simply to his capacity or willingness for work and not with his underlying mental disability, assuming he was genuinely ill.
This case highlights that, while it will often be difficult for an employer to take disciplinary action against an employee suffering from a mental illness, it can be done lawfully.
Fortunately for employers, the Full Court rejected the primary judge’s reasoning that, as Mr Robinson’s incapacity for work was caused by an underlying mental condition, his incapacity for work must therefore have been part of his mental condition such that Ms Pickles took action because of his mental condition. The Full Court accepted that:
- it is possible to separate an employee’s incapacity for work from the manifestations of their mental disability; and
- not every consequence of a disability will be a part of that disability.
This case also highlights the importance of evidence showing the mental process actually engaged in by the relevant individual making the decision for the employer. Their evidence on affidavit and, in particular, under cross-examination will be vital to an employer’s ability to successfully defend an ‘adverse action’ claim under the FW Act.
 Western Union Business Solutions (Australia) Pty Ltd v David Robinson  FCAFC 181
 David Robinson v Western Union Business Solutions (Australia) Pty Ltd FCA 1913