• Adverse Action Claim Dismissed after Employer Found to Have No Knowledge of Employee's Depression
  • December 7, 2015 | Author: Adam Salter
  • Law Firm: Jones Day - Sydney, New South Wales Office
  • In Kubat v Northern Health [2015] 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 mental illness.

    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 particular position".

    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.