The Federal Court of Australia has held that a global payments management company engaged in adverse action against a client executive “because of” his mental disability, when it dismissed him for reasons that included “serious concerns about [his] capacity to return to work” whilst he was on sick leave due to work stress and depression.
In Robinson v Western Union Business Solutions (Australia) Pty Ltd  FCA 1913, Justice Flick found that the multinational company had discriminated against its employee “because of” his mental disability under section 351 of the Fair Work Act 2009 (Cth), ordering that the company pay $160,000 in compensation and penalties to the executive.
The executive had commenced employment with the company in February 2013. In September 2016, he accessed sick leave due to a mental disability arising from work stress and depression. The executive remained on sick leave for seven months, during which he provided medical certificates to the company, but refused to attend an appointment with the company’s independent medical specialist.
In May 2017, the company’s human resources manager issued a letter of termination to the executive, which relevantly stated that:
“… 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. …”
Following his dismissal, the executive launched legal action against the company, asserting, among other things, that the company had discriminated against him “because of” his mental disability, contrary to section 351 of the Fair Work Act.
In line with the recent decision of Shizas v Commissioner of Police  FCA 61, the Court held that a “disability” under the Fair Work Act relevantly included “‘manifestations’ of that disability”.
Accordingly, Justice Flick held that “any lack of ‘capacity’ … to return to work was but a ‘manifestation’ of [the executive’s] claimed mental disability”. It then followed that the executive’s incapacity to return to work constituted a manifestation of his mental disability that “could not be ‘severed’ from [his] disability.”
Although the Judge accepted that the human resources manager had a genuine belief that she had not discriminated against the executive because of his disability, his Honour held that she had nevertheless discriminated against the executive because of a “manifestation” of his mental disability:
“[T]he conclusion that has been reached is that – no matter how genuinely [the human resources manager] believed that action should not be taken because of a disability – she nevertheless fell foul of [the Fair Work Act] by taking action motivated in part by a ‘manifestation’ of [the executive’s] disability, namely a concern as to his ‘capacity’.”
Furthermore, Justice Flick rejected the company’s further argument that, if it had taken adverse action the executive, it had done so because of the “inherent requirements” of the executive’s position. In doing so, the Judge observed that the statutory expression “inherent requirements of a particular position” should not be read as a “a reference to every requirement of that position”.
Upon finding that the company had breached section 351 of the Fair Work Act, the Court ordered that the company pay $140,000 in compensation to the executive, comprising $125,000 for economic loss and $15,000 for general damages, and imposed an additional $20,000 penalty on the company, which was also to be paid to the executive.