By Charles Power

Your employee goes on extended personal leave and submits medical certificates stating inability to work due to “a medical condition” or “significant work-related stress and depression”. The employee refuses your request for them to submit to an independent medical assessment (IME). The employee goes onto unpaid leave because their paid personal leave entitlement is exhausted.

You threaten to dismiss the employee for not cooperating with your request for an IME. What is your legal exposure if you dismiss them?

These were the facts before the Federal Court in a recent decision in Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019). The employer dismissed the employee on notice stating in the termination letter (in effect): “You have not attended work for a period of 7 months, with 3 of these months constituting unpaid leave, and the evidence suggests you are not fit to return to work. You cannot give any indication as to when you will return to work and we have serious concerns about your capacity to return to work. You have refused multiple, reasonable attempts to arrange an IME and you have therefore unreasonably failed to cooperate with our attempts to obtain up-to-date, specialist medical advice.”

The employee claimed the dismissal contravened the prohibition in the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act). This is the prohibition against an employer taking adverse action against an employee because of the person’s physical or mental disability.

To succeed in this claim, the employee must prove that it was more likely than not that the dismissal was for a prohibited reason, or reasons that included the employee’s physical or mental disability.

If the dismissal decision was made because of the inherent requirements of the particular position concerned, the prohibition does not apply. This defence does not require it to be established that the employee is unable to carry out the inherent requirements of particular employment. If you dismiss an employee for incapacity for work, and this is an inseparable manifestation of disability, the defence is made out if you believe the employee could not, for that reason, perform the inherent requirements of the position. The defence applies even if your belief is an honest mistake.

The defence also applies if you believe the employee is unwilling to perform the inherent requirements of the position.

In Robinson, the two reasons for the dismissal were:

• the employee had unreasonably failed to attend an IME, which amounted to an unreasonable failure to cooperate with the employer’s attempts to obtain up-to-date, specialist medical advice; and
• the employer had serious concerns about the employee’s capacity to return to work.

The FW Act prohibition did not apply to the first reason. The case was whether the second reason fell within the prohibition.

At first instance, the Court ruled it did because the concern was based on the employee’s mental disability and no distinction could be drawn between his capacity to work and his mental disability. A lack of capacity was a manifestation of the employee’s claimed mental disability and therefore part of the disability.

The Full Court disagreed and ruled that it could not be assumed that the employee’s incapacity was part of the disability. The fact the employer was concerned with the employee’s capacity for work did not mean a reason for dismissal was the employee’s mental disability. In any event, the Court noted that in this case, there was no evidence or finding as to precisely what the employee’s mental condition was pre-termination or how that affected the employee’s work capacity.

Importantly, the Court noted that not every consequence of a disability is to be regarded as a manifestation of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes.

In this case, the Court held the person who decided to dismiss the employee was:

• not sure whether the employee was genuinely unwell and whether his absence from work was explained by his underlying medical condition, or whether he was in fact able but unwilling to return to work and had been delaying or otherwise refusing to cooperate with reasonable and lawful requests to attend an IME; and
• concerned that, if the employee had been genuinely unwell for 7 months, then he could not fulfil any of the requirements of his position for the reasonably foreseeable future.

This concern related to the employee’s capacity or willingness for work and not with his underlying mental disability. The decision-maker believed the employee’s mental condition may have diminished his capacity for work and that incapacity was a part of his mental disability because it was a manifestation of it.

However, that didn’t necessarily mean the employee was dismissed because of his mental disability. The decision-maker had not reached a final view about whether or not the employee was genuinely unwell or whether he was malingering. The decision-maker was unable to reach a view about whether the employee was actually able to satisfy the inherent requirements of the position without more information, including the IME. However, the dismissal was still taken because the decision-maker believed the employee was either unable or unwilling to perform the inherent requirements of the position. Therefore, the employer did not contravene the FW Act general protections provisions.