The Case

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

Western Union Business Solutions (Australia) Pty Ltd (Western Union) employed Mr Robinson as an executive. Mr Robinson suffered a workplace injury and was on personal leave for 7 months.

During his absence, he provided medical certificates, which variously said he was suffering from:

• a medical condition;
• significant work-related stress and depression; and
• a major depressive disorder associated with significant anxiety.

Mr Robinson’s medical certificates indicated that he had no current capacity for any employment. However, none of the certificates indicated when he might return to work.

After trying to obtain further information about Mr Robinson’s medical condition and failing to do so, Western Union terminated Mr Robinson’s employment because:

• of Mr Robinson’s failure to cooperate and provide it with up-to-date information about his medical condition; and
• it had concerns about his capacity to return to work.

Mr Robinson commenced general protections proceedings, claiming Western Union had taken unlawful adverse action against him because of his disability.

The Verdict

At first instance, the Federal Court found that part of Western Union’s decision to terminate Mr Robinson’s employment was due to Mr Robinson’s incapacity to return to work. The Court held Mr Robinson’s lack of capacity to return to work was a manifestation of his disability and that a disability includes the manifestations of that disability. This meant Mr Robinson’s disability was an operative reason for the decision to terminate.

Western Union appealed the decision to the Full Court of the Federal Court. The Full Court held the manifestation of the disability being the incapacity to return to work was not the same thing as Mr Robinson’s disability. As such, as the disability was not an operative reason for the decision to terminate.

The Lessons

This decision shows that courts are prepared to distinguish between a disability and its consequences, such as an incapacity for work. This means that employers can, in appropriate circumstances, lawfully terminate the employment of an employee who has been off work in excess of 6 months when they do not have capacity to return to work in the foreseeable future. However, each case turns on its own facts, so you should always obtain legal advice to reduce your legal risks.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.