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A lack of capacity to work can be a manifestation of a mental disability

25 January 2019

#Workplace Relations & Safety

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A lack of capacity to work can be a manifestation of a mental disability

Employers need to exercise caution when managing employees who have medical conditions or similar issues. Particular attention needs to be paid to ensure action is not taken because of a manifestation of the condition, such as side-effects of mental illnesses.

A recent Federal Court decision saw Western Union Business Solutions fall foul of section 351 of the Fair Work Act because of this scenario.


Mr Robinson worked for Western Union as a Client Executive. In September 2016, he went on what became an extended period of sick leave alleging he was suffering from a medical disability relating to work related stress and depression. Mr Robinson provided several medical certificates in support.

In January 2017, Western Union requested Mr Robinson attend a medical examination with a doctor nominated by it. Western Union explained to Mr Robinson, that the purpose of the medical examination was to get an “evaluation of your medical condition and to provide a recommendation for the timeframe of your return to the organisation.”

Mr Robinson did not respond to Western Union, so it followed up approximately two weeks later. In response, Mr Robinson refused to see Western Union’s doctor and stated that Western Union should contact his general practitioner for the information they sought.

Western Union and Mr Robinson engaged in similar correspondence for about two months.

In March 2017, Mr Robinson finally told Western Union he was “more than happy to attend any medical appointment that Western Union requires.” Western Union confirmed that it would obtain dates and times when its medical examiner was available to organise an examination. Notwithstanding, Western Union did not obtain any further dates and did not require Mr Robinson to attend a medical examination.

Instead, in May 2017, Western Union sent a letter terminating Mr Robinson's employment and provided the following reasons for doing so:

Given … your unreasonable failure to cooperate with the Company's attempts to obtain up-to-date, specialist medical advice and in light of the Company's serious concerns about your capacity to return to work, the Company has decided to terminate your employment.

In August 2017, Mr Robinson commenced proceedings in the Federal Court alleging that Western Union discriminated against him by dismissing him because of his mental disability.

Reasons for the dismissal

Justice Flick considered Western Union had two reasons for terminating Mr Robinson's employment. Specifically:

  • Mr Robinson’s “unreasonable failure to cooperate with the Company's attempts to obtain up-to-date, specialist medical advice”
  • Western Union’s “concerns” regarding Mr Robinson's “capacity to return to work”.

It was the second of those reasons which Justice Flick considered amounted to discrimination for the purpose of section 351(1) of the Fair Work Act.

In considering Western Union's reasons for dismissing Mr Robinson, Justice Flick observed that part of the context of Western Union’s decision was “the content of the claims being made by Mr Robinson, namely his repeated claims that he was ‘unwell’ and claims that he was ‘suffering a psychiatric condition’.” It followed that, “[Mr Robinson’s] claimed ‘psychiatric condition’ formed part of the decision-making processes of [Western Union] when [it] expressed ‘concerns’ as to Mr Robinson’s capacity to return to work’.”

Justice Flick then considered whether Mr Robinson’s lack of capacity could be considered a disability. He stated that, “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”.

As such, Just Flick concluded that Western Union had dismissed Mr Robinson because of his mental disability and ordered it pay to Mr Robinson $140,000 in compensation and further imposed a penalty of $20,000.

What this means for employers

Taking management action against employees with illnesses or disabilities should be done carefully and thoughtfully. If action is to be taken because of an illness or a manifestation of the illness, the employer must ensure there is an appropriate exception set out in the Act that applies and specifically refer to that exception. A good example that was discussed briefly in the above matter was whether the action is taken because the person cannot comply with the inherent requirements of a position.

Authors: Rachel Drew & Damien Payard

Charles Power, Partner
T: +61 3 9321 9942

Benjamin Marshall, Partner
T: +61 3 9321 9864

Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439

Michael Selinger, Partner
T: +61 2 8083 0430

Rachel Drew, Partner
T: +61 7 3135 0617

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. 

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