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September 2019

Dismissal based on the manifestation of a disability results in successful general protections claim

Dismissal based on the manifestation of a disability results in successful general protections claim

Robinson v Western Union Solutions (Australia) Pty Ltd (2019)

The Case

Western Union Solutions (Australia) Pty Ltd (Western Union) employed Mr Robinson, who suffered work-related depression and was certified unfit for work. After some time, Western Union requested that Mr Robinson attend an independent medical examination.

Mr Robinson refused, indicating his preference that Western Union obtain the information from his doctors. Western Union refused and when Mr Robinson refused to make an appointment with their doctor, it terminated his employment on the basis of the refusal and concerns about his capacity to work.

The Verdict

Mr Robinson commenced general protection proceedings, alleging Western Union had discriminated against him on the grounds of his mental disability. The Federal Court had to decide whether Mr Robinson had been dismissed because of his mental disability.

The Federal Court held:

  • the termination letter referenced one of the grounds for termination being “concerns about [Mr Robinson’s] capacity to return to work”; and
  • “any lack of capacity of Mr Robinson to return to work was but a manifestation of his claimed mental disability and a manifestation that could not be severed from that disability.”

The Federal Court ordered that Western Union pay Mr Robinson $140,000 and a penalty of $20,000.

The Lessons

This decision demonstrates the care that must be exercised in dismissing an employee with a disability. The disability (and any manifestation of the disability) should not be included as a reason for the termination, unless there is medical evidence demonstrating that the employee cannot perform the inherent requirements of the position even if reasonable adjustments were made.

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