Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181

FEDERAL COURT OF AUSTRALIA

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 Appeal from: Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913

File number: NSD 125 of 2019

Judges: KERR, O'CALLAGHAN AND THAWLEY JJ

Date of judgment: 23 October 2019

Catchwords: INDUSTRIAL LAW - Fair Work Act 2009 (Cth) s 351(1) – adverse action - mental disability - whether prolonged failure to attend work a manifestation of Appellant's disability – consideration of Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 – not a manifestation – no adverse action because of Appellant's disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) – adverse action – mental disability – mental process of decision-maker – where decision-maker did not know whether or not Appellant was ill and believed he was not– where decision maker did not perceive failure to attend work to be a manifestation of Appellant's disability – no adverse action because of Appellant's disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(2)(b) – adverse action – mental disability – whether employee could not perform inherent requirement of employment – Appellant unwilling or unable to perform duties – no adverse action because of Appellant's disability INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 545 – adverse action – mental disability - compensation order – likelihood of return to work – refusal to attend independent medical examination an alternative and sufficient reason for termination – no economic loss sustained

Legislation: Disability Discrimination Act 1992 (Cth) ss 4, 15(4) (repealed) Fair Work Act 2009 (Cth) Ch 3, Pt 3-1, Divs 4, 7, ss 340, 346, 351(1), 352(2)(b), 351(3)(ab), 352, 360, 361, 545(1), 545(2), 570 Fair Work Regulations 2009 (Cth) reg 3.01