Under s 351(1) of the Fair Work Act 2009 (Cth) (FW Act), an employer must not take adverse action against an employee because of physical or mental disability. This is unless the action is not unlawful under any applicable state or territory anti-discrimination law, or it was taken because of the inherent requirements of the position.

For the purposes of s 351 of the FW Act, adverse action taken because of physical or mental disability requires:

• the action to be taken because of the disability, not incapacity that happens to be a consequence of a disability; and
• the decision-maker of adverse action to have knowledge that the employee is suffering from a condition, and that this condition is the reason for the performance or misconduct.

It’s important to appreciate that the approach taken by the courts to discrimination for the purposes of s 351 may not be the same in determining whether an employer has engaged in discrimination for the purposes of anti-discrimination legislation.

Adverse action for incapacity for work

Incapacity for work may well be a consequence of disability but this doesn’t necessarily mean it is a manifestation or part of the disability. For example, incapacity for work may be caused by an underlying mental illness. However, just because the employer acts on the incapacity does not mean it is motivated by the underlying mental condition.

This was seen in Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019). In this case, an employer dismissed an employee for failing to attend a medical appointment as requested and concern about the employee’s capacity to return to work. The employee had provided medical certificates indicating that he had anxiety and depression.

The employee claimed he was dismissed because of his mental illness. The decision-maker in the decision to dismiss denied that the employee was dismissed because of mental illness.

The Full Federal Court found that if the effect of the employee’s mental condition on his ‘capacity’ for work was a part of his mental illness because it was a ‘manifestation’ of it, and the decision-maker was shown to have thought that his incapacity was nothing more than the manifestation of his mental disability, that did not necessarily mean that the decision to dismiss was because of his mental illness. The two considerations could be severed or disaggregated.

Adverse action for performance issues

In Batista v Wells Fargo International Finance (Australia) Pty Ltd (No.2) (2020), an employee received a written warning for, among other things, not attending the office at the required time of 9am. The employee claimed his inability to attend work was a ‘manifestation’ of a mental illness (i.e. depression and anxiety) and the employer, in breach of section 351, had taken adverse action against him for reasons that included his illness.

The employer had previously raised concerns about the employee’s mental wellbeing. The employee was referred to the Employee Assistance Program, and both his manager and HR were aware the employee was on medications (that were non-drowsy) and attending counselling.

HR and the employee’s manager were aware the employee had spoken of having a ‘meltdown’ that required a week off work. The medical certificate stated that he was suffering from anxiety with depression, for which he was receiving medication and counselling pending referral for a psychiatric assessment.

The Court was satisfied the employee had anxiety and depression at the relevant time and, as such, suffered from a disability for the purposes of s 351. However, it did not accept that a ‘manifestation’ of that disability was his lateness to work. The employee had requested to work from home but this was not made for health reasons.

The employer was not aware the inability to attend the office at 9am was in any way attributable to a mental illness. Without this knowledge, it cannot have taken adverse action because of this.

The conduct and performance issues can be severed or disaggregated from any disability he has. The cause of his misconduct and performance issues played no role in any of the decisions ultimately made. It was entirely the loss of trust and confidence in the employee carrying out his role that resulted in him being dismissed.

The Court was unwilling to assume there was a causal link between his anxiety and depression and his poor performance.

The Court also ruled that if the conduct and performance issues were a manifestation of his disability and the decision-makers were aware of the disability, it was an inherent requirement of his position to attend the office at required times and avoid errors in his work.