the Applicant v Western Union Business Solutions (Australia) Pty Ltd (No 2)
Citation: [2019] FCA 422
At a glance
- Penalty
- $20,000
- Employees affected
- 1
What happened
the Applicant was employed by Western Union Business Solutions (Australia) Pty Ltd. the Applicant was dismissed and claimed Western Union took adverse action against him because of his mental disability (s 351 of the Fair Work Act). the Applicant contended the dismissal was motivated by discriminatory reasons relating to his inability to return to work, which manifested his disability.
What was decided
The court found Western Union contravened s 351 by taking adverse action against the Applicant because of his mental disability. The court awarded compensation of $125,000, general damages of $15,000, and imposed a penalty of $20,000. On the costs question, the court ordered each party to bear its own costs, finding Western Union's defence of the claim was not unreasonable despite the ultimately adverse outcome.
What it means for employers
Disability discrimination is unlawful even where masked as performance or capacity concerns. An employee's manifestation of disability (inability to work) cannot be separated from the disability itself as a reason for adverse action. Employers must make reasonable adjustments and cannot discriminate based on disability-related manifestations.
What it means for employees
Employees with mental disabilities have strong protections against dismissal. Manifestations of disability (depression, anxiety, fatigue) are protected; dismissal based on these manifestations is unlawful. Compensation and penalties are available.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0422Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →