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Dismissing an employee who can’t work – Is it discrimination?

By Charles Power

If an employer dismisses an employee because of his or her mental disability, other than because of the inherent requirements of the particular position concerned, the employer is likely to contravene the general protections provisions of the Fair Work Act 2009 (Cth).

If you have an employee who is off work for an extended period because of a stress condition and you feel they will never be capable of returning to work, can you separate the true reason for dismissal – the employee’s incapacity for work – from the causes of that incapacity – the employee’s mental disability?

The recent decision of the Federal Court in Robinson v Western Union (2018) highlights the difficulties with this approach.

This case concerned a general protections claim in which the employer asserted the reason for dismissal was because of concerns regarding the employee’s capacity to return to work, rather than because the employee suffered from a mental disability.

However, the Federal Court ruled that no distinction could be drawn between the employee’s capacity to return to work and his mental disability.

This is because the employer’s concerns about the employee’s capacity to return to work were founded in the employer’s dissatisfaction with the employee’s refusal to attend medical examinations to ascertain his work capacity leading to the employer doubting that the employee actually had the claimed ‘psychiatric condition’.

The Court ruled that because the employee’s incapacity to return to work was a manifestation of his claimed mental disability, the dismissal was because of, or at least for a reason which included, a manifestation of his claimed mental disability.

Moreover the Court ruled the dismissal was not because of the inherent requirements of the employee’s position.

The Court observed that this defence was not available the moment an employee produces a medical certificate stating that he or she was unfit to return to work in the foreseeable future.

In this case the Court observed the employer had not reached any conclusion as to the employee’s actual capacity to undertake the inherent requirements of his position.

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