Depression and discrimination: a case study

Men's mental health at work

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.

Robinson v Western Union (2018)

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. Rather, he would prefer that his employer obtained the information that they were seeking from his doctors. 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.

In the termination letter, Western Union said that the reason for the dismissal was the refusal to attend an independent medical examination, that he had not given an indication as to when he would return to work, well as the “Company’s serious concerns about [his] capacity to return to work.”

Legal proceedings

Mr Robinson commenced proceedings alleging (amongst other things) that his employer discriminated against him on the basis of his mental disability.

Western Union argued that Mr Robinson unreasonably failed to cooperate with the company’s attempts to obtain up-to-date specialist medical advice and that they had concerns about his capacity to return to work. They said that their termination was not unlawful because Mr Robinson could not fulfil the inherent requirements of his role. They argued that they didn’t know Mr Robinson was suffering from a disability and therefore could not have discriminated against him.

Discrimination is unlawful

In order for discrimination to be unlawful under section 351 of the Fair Work Act it must be established that the employer took adverse action against a person because a person had a protected attribute (such as a disability).

In this case, it was established that Mr Robinson had a mental disability and that his dismissal constituted adverse action. The Court found that there could be no distinction drawn between Mr Robinson’s “capacity” to return to work and his disability because his “capacity” was linked to his disability. Therefore, his condition formed part of the decision making process.

The court also found that his employer did not have sufficient information and was not in a position to form a view as to whether Mr Robinson could satisfy the inherent requirements without further medical information. Importantly, the employer did not think she was being discriminatory – a fact which the judge argued that she should have been aware of.

Mr Robinson succeeded in his discrimination claim and was awarded $160,000 in compensation ($125,000 economic loss, $15,000 general damages, $20,000 penalty).

Your rights at work

It may be unlawful for an employer to dismiss an employee because of ill health, even when that employee has been absent for a long period of time.

Employees who believe that they have been treated unlawfully because of an illness or disability should seek legal advice as soon as practical.

RELATED LEGAL SERVICES: Employment law

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Emily Creak

Maurice Blackburn Melbourne
Emily Creak is an employment and industrial Associate, practising in Maurice Blackburn’s Melbourne office. Emily has been recognised by the Law Institute of Victoria as an Accredited Specialist in Workplace Relations Law, and is a member of the only first tier law practice listed by ...

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