In Kubat v Northern Health  FCCA 3050 (17
November 2015), the Federal Court dismissed an employee's claim
that disciplinary action taken against her and her eventual
dismissal amounted to unlawful adverse action taken due to her
Factual Background. The employee worked as a
hospital-based Turkish interpreter. Throughout 2011–2012,
Northern Health gave the employee various warnings and engaged in
disciplinary meetings with the employee regarding her repeated
lateness and absences from work. The employee told her managers
that she had personal issues and "was not well in
herself" but did not disclose her depression diagnosis.
In late 2012, Northern Health received medical evidence that the
employee was suffering from depression and could return to work for
only one half day per week and only if Northern Health could
guarantee that she would not encounter undue stress or tension.
Northern Health refused to allow the employee to return to work and
eventually dismissed the employee in May 2014 on the basis that it
could not accommodate those conditions.
Legal Background. Firstly, the employee claimed
that prior to her dismissal, Northern Health had taken unreasonable
disciplinary action in the form of disciplinary meetings and
warnings. The employee argued that the action was unlawful adverse
action because it was taken against her because of her mental
disability, which is a prohibited reason under section 351 of the
Fair Work Act 2009 (Cth) ("Act").
Second, the employee argued that her dismissal constituted unlawful
adverse action taken because of her mental disability. However, as
a defence, the employer relied on section 351(2)(b) of the Act,
which states that the prohibition in section 351 does not apply to
action "taken because of the inherent requirements of the
Decision. In relation to the employee's first
claim, Judge Riley found that the disciplinary action in question
could not have been based on her depression, because at the time
the disciplinary action was taken, the employer was not aware that
the employee was suffering from depression. The behaviour which the
employee argued was sufficient to communicate her depression was
found by Judge Riley to not necessarily be a clear indicator of
depression. Her lateness and absences were found also to be
consistent with a lack of commitment to work, and crying at
disciplinary meetings was also considered to be a normal response
in the context which did not unequivocally indicate that the
employee was suffering from depression.
In relation to the second claim, Judge Riley accepted the
employer's evidence that the employee was dismissed because it
was impossible for Northern Health to create a work environment
which guaranteed that the employee would not encounter conflicts or
tension. Those elements were found to be inherent and unpredictable
in the employee's role as a hospital interpreter for patients,
and reasonable adjustments could not be made to eliminate those
potential stressors. Since medical evidence showed that the
employee could not work under those conditions, she was found to be
unable to fulfil the inherent requirements of her role.
Lessons for Employers. Employers should be mindful
that dismissing an employee or taking unreasonable disciplinary
action on the basis of physical or mental disability amounts to
unlawful adverse action. If such factors are present, employers
should dismiss the employee only if the employee is unable to
fulfil the inherent requirements of his or her role and reasonable
adjustments to allow the employee to fulfil the inherent
requirements of his/her role cannot be made.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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