Caution required when terminating the employment of an employee with mental health issues
The decision of Robinson v Western Business Solutions (Australia) Pty Ltd  FCA 1913 (Robinson) highlights that terminating the employment of employees absent from work for health-related reasons may expose employers to liability.
Mr Robinson worked as a Client Executive for Western Union and was absent from work with medical certificates for approximately seven months due to work related stress, anxiety and depression.
Western Union tried to contact Mr Robinson about his return to work status throughout the period he remained absent and requested he attend an independent medical assessment.
Western Union initially provided several dates for Mr Robinson to attend an independent medical assessment, however Mr Robinson repeatedly refused to attend the independent assessment, instead requesting Western Union contact his own General Practitioner and Psychologist.
Once Western Union informed Mr Robinson that the request he attend an independent medical assessment was a lawful and reasonable direction, Mr Robinson agreed. In March 2017, Western Union informed Mr Robinson it would advise of a new date to attend a medical assessment, however it failed to do so.
On 8 May 2017, Mr Robinson’s employment was terminated with the company stating:
“Given 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.”
Mr Robinson claimed Western Union took adverse action ‘because of’ his mental disability. Mr Robinson claimed this constituted a breach of section 351 of the Fair Work Act 2009 (Fair Work Act).
Western Union argued Mr Robinson’s employment was terminated because he could not perform the inherent requirements of his position, pursuant to section 351(2)(b) of the Fair Work Act.
The Court found Western Union took adverse action against Mr Robinson because of a ‘manifestation’ of his mental disability. The Court held the company’s adverse action was highlighted in the termination letter by the reference to concerns for his capacity to return to work.
The Court also held that Western Union could not rely on the ‘inherent requirements’ exception in the Fair Work Act as there was a lack of evidence to support the allegation he could not perform the inherent requirements of his position. The Court made clear its support for the view that an identification of the ‘inherent requirements’ of a position are not necessarily determined by the express terms of the contract of employment. The Court recognised the difficulties in “defining precisely the outer limits of what constitute the “inherent requirements” of a position”.
The facts of this case, as with others considering the notion of ‘inherent requirements’, were critical to the ultimate finding arrived at by the Court. The evidence supported only that the employer had ‘concern’ about the capacity to return to work. No decision as to the Applicant’s actual capacity had been made and he was ultimately dismissed after repeated attempts to attend an independent examination. This meant the ‘inherent requirements’ exception could not apply.
What this means for employers
This case highlights that employers should exercise caution when managing employees absent from work for health-related reasons.
If an employee is unwell and absent from work for a prolonged period, employers should obtain independent medical advice in relation to the employee’s ability to perform the inherent requirements of their position and be clear about what is understood to be ‘inherent’ about the aspects of the position.
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