Dismissal based on mental health discrimination found to be unlawful

15 May 2019
Almost half of Australians will experience a mental health issue at some point in their lifetime. For anyone suffering with a mental illness, work can be tough – especially if your work caused or contributed to it. But what happens when your work tries to force you to attend medical appointments while you’re on stress leave, and then fires you?

The recent decision of the Federal Court in Robinson v Western Union (2018) considered just these matters.

Three and a half years into his job with Western Union, Mr Robinson commenced stress leave, suffering from work-related depression. Mr Robinson provided regular medical certificates which all stated that he did not, at that time, have capacity to work.

In early 2017, Western Union started making requests for Mr Robinson to attend an independent medical examination with a doctor of their choosing. Like many people, Mr Robinson did not want to attend a doctor that he did not know, and who had no knowledge of his medical background. He advised Western Union that this was his preference and confirmed that he was happy to sign the relevant authorities for that to occur. 

Western Union sent Mr Robinson a follow up an email in March 2017 requesting for him to attend an independent medical examination, but failed to send appointment times. Western Union refused to obtain the information from Mr Robinson’s treating medical practitioner. Two months later, Mr Robinson was dismissed from his job.

You can read more about the specifics of Mr Robinson's case, including the legal proceedings and the outcome, on our blog

Tips for industrial officers 

If you have a member who is off work because of work-related stresses, it is important to: 

  • Always seek clarity from the employer as to whether the member can see their own doctor
  • If the member can't see their own doctor, try to get some clarity from the employer as to why
  • Ask your member to keep copies of communications that they have with their employer about their medical condition and fitness for work 
  • If it doesn't seem right, seek legal advice as soon as possible to avoid your member being sacked 
  • Remember that you only have 21 days to file a general protections dismissal claim (such as this one) 

Practice Areas: