The word ‘disability’ in the context of s.351 should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses.[1]
Examples can be found in the definition of disability in the Disability Discrimination Act 1992 (Cth). ‘While physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not.’[2]
Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080 (26 October 2012).
The applicant was terminated because ‘he was always sick’.
The Court found that the applicant had been terminated due to his sickness, which was held to be a disability.
Penalty ordered
The respondent was ordered to pay the union representing the applicant $16,500 as a pecuniary penalty.
Stephens v Australian Postal Corporation [2011] FMCA 448 (8 July 2011), [(2011) 207 IR 405].
A work related lumbar spine injury, together with its symptoms and functional impairments, was held by the court to constitute a ‘physical or mental disability’ for the purpose of s.351(1). The respondent argued that it dismissed the applicant due to a missed ‘pick-up’. However, the Court found that the respondent was very aware of the applicant’s disability, including its past, present and future ramifications.
The Court could not find that the real reasons for the dismissal were not associated with the applicant’s disability.
Penalty ordered
The respondent was ordered to pay the applicant $25,000 as a pecuniary penalty.
Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804 (20 April 2015).
The applicant was employed by the respondent as an Account Manager. The applicant took sick leave and presented a medical certificate upon her return to work. The respondent requested the applicant attend a company doctor to ensure that she was fit for work. The company doctor reported that the applicant was suffering anxiety and stress disorder but was fit to return to her normal duties.
Shortly afterwards the respondent’s State Manager told the applicant that, based on the company doctors report, the applicant could not perform her duties as Account Manager. The State Manager offered the applicant the option of either performing a telephonist role with a reduced salary of $30,000.00 pa, moving to the position of Sales Executive with a significant increase in workload or resignation. The applicant was told to decide by close of business that day.
The applicant attended her doctor claiming she was anxious and distressed. The doctor provided her with a certificate of incapacity and she completed a Workcover claim. Approximately six weeks later the applicant returned to work where she was told that her position had been made redundant, effective immediately.
The applicant claims that the respondent breached s.340 of the Fair Work Act as it dismissed her because of her Workcover claim, breached s.351 as it dismissed her because of her physical and mental disability being her medical condition, and breached s.352 because of her temporary absence from work because of illness or injury.
The Court found that the respondent did not make the applicant redundant because of her mental illness or because she took time off her illness, and accepted the evidence that the redundancy resulted from a restructure. However the Court found that the respondent changed the applicant’s position to the applicant’s detriment due to the applicant being unwell in breach of s.340(1)(a) and s.351(1).
Penalty ordered
The respondent was ordered to pay the applicant $5,940 as a pecuniary penalty.
Silver v Rogers & Rogers [2012] FMCA 674 (8 August 2012), [(2012) 224 IR 439].
The applicant became unwell due to pneumonia and golden staph and was subsequently off work for a significant period of time. His employment was terminated due to ‘economic circumstances and health related issues’.
The Court found that the applicant’s physical disability and health issues were an operative reason for his dismissal.
Penalty ordered
The respondent was ordered to pay the applicant $2,500 as a pecuniary penalty.
Compensation ordered
The respondent was ordered to pay the applicant $15,000 for distress and lost opportunity damages; $5,417.25 for non-payment of notice of termination; and $3,180.38 interest.
Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011), [(2011) 207 IR 129].
The applicant failed to meet targets whilst on a Workplace Improvement Plan (WIP) and a back-to-work regime as a result of a back injury. The applicant claimed that she was dismissed as a result of her disability or because of her temporary absence from work due to her medical concerns.
The Court determined that the dismissal instead resulted from the applicant’s failure to meet the specified targets of her WIP.
Evangeline v Department of Human Services [2013] FCCA 807 (28 June 2013).
The applicant made sexual harassment allegations against another employee, claiming that preferential treatment was provided to the accused employee because of the applicant’s disability.
The Court found that there was nothing to suggest that the comprehensive action taken by the respondent as a result of the applicant’s harassment allegations against a colleague had anything to do with her disability. The application was dismissed.
Cugura v Frankston City Council [2012] FMCA 340 (24 April 2012).
The applicant claimed that the respondent failed to accommodate his disability and terminated his employment after incorrectly concluding that he could not perform the inherent requirements of the job.
The Court accepted that the applicant had a physical disability but held that the decision to dismiss him was a considered one and was only reached after an investigation into the applicant’s conduct.