Australia: To assume or not to assume: Assumed disability and discrimination in the workplace

Last Updated: 18 June 2018
Article by Ashleigh Mills

Most Read Contributor in Australia, September 2018

In recent years there has been an increased focus on the existence of mental health issues - and what can be done about addressing those issues - in both personal and professional spheres.

In the workplace, it has meant that employers are increasingly being encouraged to identify the signs of mental health issues at work and to foster a culture of communication about those issues amongst its workforce. However, as a recent case decided before the NSW Civil and Administrative Tribunal (NCAT) illustrates, employers must take particular care when addressing concerns raised internally about an employee's mental health.

The facts

In Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106, Ms Stefanac was awarded compensation after her complaint of "assumed disability" discrimination was upheld by NCAT. Ms Stefanac, a case worker at the Department of Family and Community Services, had been directed to take a period of 'sick leave' after concerns had been raised internally about her mental state.

In particular, Ms Stefanac was said to have had a number of conversations with colleagues at the Department in which she had spoken openly of various conspiracy theories. Those conversations were alleged to include statements to the effect that:

  • a planet or meteorite was heading towards earth
  • the government knows about this but is covering it up.

These conversations were internally reported to the employer's human resources department.

Based on concerns held by the Department, including that Ms Stefanac's role as a 'case worker' involved the care and management of vulnerable children, a direction was issued to Ms Stefanac that she take 'sick leave' until a determination was made as to her fitness for work moving forward.

Ms Stefanac did take a period of leave before being formally certified to return to work by her treating practitioner. At all times Ms Stefanac maintained that she did not have any medical issues relating to her mental state.

Ms Stefanac lodged a discrimination complaint to NCAT on the basis that she had been discriminated against as a result of a perceived or assumed disability, being, in this case, that Ms Stefanac was suffering from a mental health illness.

The findings

In considering the complaint, NCAT considered the relevant sections of the Anti-Discrimination Act 1977 (NSW) (the Act), including, relevantly, that the definition of disability in the Act included that of an "assumed" disability.

The Tribunal ultimately found that:

  • the disability - being the mental illness - had been assumed by the Department and was not otherwise substantiated in the circumstances
  • at least one of the reasons that the Department had directed the employee to take Sick Leave was because of the assumed disability
  • the direction caused detriment to Ms Stefanac, including at a minimum, because it resulted in an injury to Ms Stefanac's feelings.

NCAT ordered the Department to pay $20,000 to Ms Stefanac in compensation for pain and suffering, but did not require the Department to issue a formal apology as had been sought by Ms Stefanac. In addressing that issue, NCAT did note that the Department had genuinely thought that Ms Stefanac had a mental illness at the time of making the direction.

The lessons

This case serves as an important reminder to employers that concerns relating to an employee's mental health should always be approached with caution and in accordance with internal policies and procedures. In particular - and either directly or indirectly - the case raises a number of broader questions. Some of these questions are flagged below.

  • Ability to issue lawful and reasonable directions
    When dealing with ill or injured employees (or in this case, assumed to be ill or injured employees), a key issue will always be what will and what will not constitute a lawful and reasonable direction. Commonly this issue will arise where an employee who has been on extended sick leave is directed to obtain a medical clearance for fitness to work before returning to the workplace. Generally speaking, and subject always to the facts of the case, this will constitute a lawful and reasonable direction of the employer.
    In this case, however, the relevant 'direction' was made in circumstances where Ms Stefanac had not already been on a period of requested and/or approved sick leave and had not herself asserted that there was any medical condition from which she was suffering. It was in that context, that the direction was held to be unlawful.
  • Limits on the duty to ensure health and safety?
    An employer will always have a duty to ensure the health and safety of its workforce. However, and as this case illustrates, that duty does not operate to the exclusion of other obligations and statutory duties owed by the employer to its employees.
    In other words, the Department was not entitled to assert that it was discharging its duty to ensure the health and safety of its employees, because the actions it took were held to impinge upon Ms Stefanac's right not to be discriminated against in the workplace.
  • Importance of procedural fairness
    Employers must ensure that, to the extent possible, the processes followed in managing employees accord with the principles of procedural fairness. This includes processes relating to the management of ill or injured, or assumed to be ill or injured, employees.
    In this case, the Tribunal was not required to make a determination about the fairness or otherwise of the Department's protocols or procedures, however Ms Stefanac's allegations that she was not given an opportunity to discuss the Department's concerns with her supervisor nor was she given a copy of the letter that was provided to her treating practitioner were noted.
  • Diversity in the workplace
    Workplaces are diverse environments which are inherently made up of people who are different. In that context, it is critical that a distinction is always drawn between behaviour and conduct that is inappropriate and/or unacceptable, and behaviour or conduct that is simply different to that which the employer, or senior management of the employer, is personally accustomed to. If the latter, it will need to be treated and respected as such.

The issues and areas highlighted above are ones commonly encountered by us as part of our workplace relations and safety practice. If any of these issues are of interest to you or your organisation, or you would like further information, please contact us to discuss.

A copy of the Case - which has not been appealed by the Department as at the date of writing - can be found here.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions