Express law No. 282

1 November 2019

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181, the Full Court of the Federal Court of Australia allowed an appeal and held that dismissal of an employee who had been away from work for 7 months with a mental illness was not discrimination in breach of the Fair Work Act 2009 
(FW Act).

Summary

The decision of the Federal Court in Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913, cast doubt on the ability of employers to manage employees with medical conditions as it suggested that any adverse action against an employee with a disability or illness risked breach of the anti-discrimination protections of the FW Act.

The Full Court has clarified that there are situations where an employer can lawfully take adverse action against an employee with a disability or illness. However, employers must tread carefully to ensure that any adverse action is not taken 'because of' the disability or illness and/or ensure that the action is taken because of the inherent requirements of the employee's position.

Background

Mr Robinson worked with Western Union Business Solutions (Australia) Pty Ltd as a sales executive. In September 2016, Mr Robinson went on sick leave alleging a medical disability, and provided a series of medical and Work Cover certificates over a period of 7 months.

In correspondence in January and February 2017, Western Union requested Mr Robinson attend a doctor nominated by the company 'to assist the business in gaining a clear understanding of a possible return to work date'. Mr Robinson refused. On 27 February 2017, Western Union directed Mr Robinson to attend a nominated doctor, and stated that:

... if you continue to refuse this direction... then Western Union will treat this refusal as a breach of your contract of employment and may terminate your employment without further notice.

On 8 March 2017, Mr Robinson sent an email indicating his preparedness to follow the direction. Western Union on 13 March 2017 indicated an intention to arrange a medical appointment but did not do so.

There was then a break in correspondence until 8 May 2017, when Western Union sent a letter to Mr Robinson stating that this employment was terminated. The reasons given in that letter were:

... 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... the Company's serious concerns about your capacity to work.

In the Federal Court, Justice Flick held that the dismissal was because of Mr Robinson's mental disability. In this regard, his Honour said that a disability in s 351 includes the manifestations of the disability and that 'no distinction can be drawn, with respect, between his 'capacity' to return to work and his mental disability': at [26] and [39].

The Full Court's decision

Relevantly, Western Union appealed the decision on grounds that Justice Flick erred in:

• finding that adverse action had been taken because of Mr Robinson's mental disability when it dismissed him for reasons that included concerns about his capacity to return to work
• finding that the 'manifestation' of Mr Robinson's claimed disability could not be severed from his alleged disability in circumstances where Western Union did not know whether he, as a matter of fact, had a mental disability
• rejecting the alternative argument of Western Union that, if its concerns about Mr Robinson's capacity was sufficient to fall within the prohibition against adverse action in s 351(1) of the FW Act, it was also sufficient to satisfy the inherent requirements exception in s 351(2)(b) of the FW Act, as the dismissal was taken because of the requirement to perform duties.

The joint judgment of Justices O'Callaghan and Thawley includes a useful guide as to the operation of s 351 of the FW Act, and how to apply the individual elements. In the application of s 351, the Court will consider the following elements: see [114] – [120]:

• 'on the balance of probabilities, why the employer took adverse action against the employee, and ... ask whether it was for a prohibited reason or reasons which included a prohibited reasons'
• the mental processes of the relevant individual (here, the termination decision maker) in identifying the operative reasons for taking the adverse action
• the facts and circumstances in determining the actual reason for taking the adverse action
• if the adverse action was 'taken because of the inherent requirements of the particular position', then s 351(1) does not apply
• upon identifying the reasons for the adverse action having been taken, the questions for the Court are 'whether one of the operative reasons of substance included a prohibited reasons' (s 351(1)) and whether one of the operative reasons of substance was 'the inherent requirements of the particular position concerned' (s 351(2)(b)). This guide applies the leading decisions of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243.

The majority held that Justice Flick erred concluding that Western Union 'could not have had concern with Mr Robinson's capacity without that concern being "because" of Mr Robinson’s mental disability': at [135]. It was noted that 'the question is what the disability is, which does not necessarily equate to what the disability causes': at [137]. The majority goes on to note that s 351 'does not require a conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability': at [138].

Ultimately, the majority held that Western Union's concern was with Mr Robinson's capacity for work, and the underlying causes of the incapacity did not play a role in the decision to take adverse action: at [153]. Accordingly, whether the exclusion contained in s 351(2)(b)of the FW Act applied was irrelevant, as Western Union did not terminate Mr Robinson's employment due to his mental disability. Therefore, s 351(1) was not engaged: at [154].

Justice Kerr rejected Justice Flick's finding that 'no distinction can be drawn ... between his "capacity" to return to work and his mental disability': at [59]. Justice Kerr went on to note that the 'serious concerns' of Western Union were that Mr Robinson 'had not attended work for a period of seven months, had refused multiple opportunities to submit himself to an independent medical assessment and had given no indication of when he would return to work'. These concerns led Western Union to doubt the ability of Mr Robinson in the future to fulfil the inherent requirements of his employment – 'that is, turning up for work': at [62].

Accordingly, Kerr J held that 'Mr Robinson's disability was... not relevantly the, or a, real reason for his dismissal': at [66].

Implications

Matters will turn on the facts

Ultimately, whether s 351(1) is engaged or the inherent requirements exception is available will turn on the facts of the case and an analysis of the state of mind of the decision maker, in reaching the decision to take adverse action.

The guide to the application of s 351 provided by the majority at [114] – [120] is very useful, and emphasises that the factual basis will usually involve the relevant decision makers giving evidence (to address the reverse onus on the employer), so that the 'operative reason' for their decision to take adverse action can be assessed.

In this case, Western Union lacked any knowledge as to Mr Robinson's disability. The relevant decision maker was not sure one way or another whether Mr Robinson was unwell and whether his absences were attributable to an underlying medical condition. Throughout the process, Western Union made reasonable attempts to have Mr Robinson submit to an independent medical assessment, to assess his fitness for duty. Mr Robinson initially resisted such attempts, and eventually agreed to undergo an assessment, although such assessment was never arranged.

The critical finding of fact in this matter was that the decision maker's thought process was simply in relation to Mr Robinson's capacity, or willingness, to attend work at all. The decision to take adverse action did not turn on an assumption that Mr Robinson was mentally unwell, but rather, that he had had not cooperated with lawful requests to attend independent medical assessments, and that even if he was unwell, he could not fulfil the inherent requirements of his position (which involved him being present at work).

The 'manifestation' of a disability is separate to the 'consequence'

This decision makes clear that a disability or its manifestation may be separate from a consequence of the disability.

The critical question for decision makers in considering adverse action of employees is 'what is the disability'. The consequences of a disability, such as an incapacity for work, are not necessarily a manifestation or part of the disability.

Sections 351(1) and 351(2)(b) are standalone propositions

When determining whether an employer has acted in contravention of s 351, the Court does not first have to make a finding that the adverse action was taken 'because of' the person's disability as contemplated by s 351(1).

It may be that adverse action was taken 'because of' an employee's disability, but that it was nevertheless also taken because of the inherent requirements of the particular position. If so, adverse action may be taken lawfully, and would still lead to a finding that an employer had not fallen foul of s 351.

If the inherent requirements exemption is established, the issue whether the adverse action was taken in contravention of s 351(1) may be irrelevant.

Lessons for employers

Despite these findings, employers must always exercise caution in taking adverse action against employees who have medical conditions or a disability that contributes to performance or conduct problems.

This decision does not provide a 'green light' to terminate employees who are unable to perform their duties due to a disability. Whenever considering adverse action against an employee (including dismissal), employers must engage in an objective process to assess whether the adverse action is lawful.

At all times, employers should keep in mind that these matters turn on an assessment of the facts, and the mental state of the relevant decision maker, who may be subject to examination as to their thought process in deciding to take adverse action.

Important: The material in Express law is provided to clients as an early, interim view for general information only, and further analysis on the matter may be prepared by AGS. The material should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this message.