​Incapacity for work, not disability, triggered dismissal

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​Incapacity for work, not disability, triggered dismissal

A court has upheld an employer's argument that it dismissed an employee for incapacity to work, not because of disability.

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A full court of the Federal Court has upheld an employer’s appeal against a decision that it discriminated against an employee on the ground of his mental disability when it dismissed him after he had not worked for seven months.

The HR manager had “genuine concerns” the employee was not able to work, but the court drew a distinction between that and dismissing him on the ground of disability. The court upheld the employer’s argument that manifestation of the disability was not the reason for dismissing him, but incapacity for work was.

Facts of case


The employee suffered from depression. The Federal Court originally awarded him about $140,000 compensation after finding he was dismissed because of his disability, the case being decided as a “general protections” one with the employee claiming that adverse action was taken against him.

The employee had been absent from work for seven months due to stress and depression. He provided medical certificates that mentioned those conditions in general terms and said that he had “no capacity for work”. The employer’s reasons for dismissal were “serious concerns” about his capacity to return to work and “unreasonable failure to cooperate with requests for independent medical assessment”.  He had not replied to requests to attend independent medical assessments intended to plan his eventual return to work. The original decision found that the HR manager genuinely believed she did not dismiss the employee because of his disability, but nevertheless concluded that she had done so. That decision implied there was no distinction between mental disability and capacity to work.

However, the Full Court concluded that a link between the two did not exist. The HR manager genuinely did not believe that a disability existed and was unaware of any manifestation of one. Her “concerns” were that he had not worked for seven months, had refused to undergo independent medical assessment, and provided no indication of when he could return to work. Therefore, she concluded that he was not capable of performing the inherent requirements of the job (by being unable to attend the workplace).

The incapacity was not a manifestation of his disability. It did not logically follow that, if a disability affected capacity for work, the effect must be part of the disability. What it “is” is not the same as what it “causes”.

It was not necessary to analyse aspects of the job in detail to determine that the employee could not perform its inherent requirements. In this case, he simply could not attend the workplace and provided no indication of when that situation might change.

Therefore, in this case, the disability was not an operative reason for dismissal.

The employee had also cross-appealed to try to increase his amount of compensation, but the court dismissed the cross-appeal.

The bottom line: The decision indicates that courts will distinguish between an employee’s disability and the consequences of it, and not assume that the decision to dismiss an employee had linked the two. A dismissal can be made on the basis of the consequences of a disability and not be discriminatory. However, each case will have its individual circumstances, and the employer’s knowledge of the employee’s circumstances and the actual reasons for making the decision will be taken into account. An employer may have to prove that it legitimately did not know about an employee’s disability.

Read the judgment


Western Business Solutions (Australia) v Robinson, [2019] FCAFC 181, 23 October 2019 
 
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