ASSIGNMENT- (CA-II)

(Assignmenttowards the fulfillment of assessment in the subject of Health Law)

SUBMITTED BY SUBMITTED TO
SUVIGYA TRIPATHI DR. ROSMY JOAN
B.A., LL.B. (BUSINESS LAW HONS.) ASSISTANT PROFESSOR
UG SEMESTER IX FACULTY OF LAW
ROLL NO.:1367 NATIONAL LAW UNIVERSITY
JODHPUR

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMERSESSION
(JULY- NOVEMBER 2019)
 STATEMENT OF FACTS

Mr Robinson, who was an employee of Western Union Business Solutions (Australia)Pty Ltd
(Western), had been absent from work for seven months, including a period ofapproximately
three months’ unpaid leave. He provided multiple medical certificatesduring his absence,
confirming his ‘very significant work related stress and depression’.

However, with no indication of an expected return date, his employer, Western

UnionBusiness Solutions (Australia) Pty Ltd (Western), sought to verify this diagnosis by
directing him to attend an independent assessment with a medical specialist of theirchoice.
This direction led to a protracted disagreement about whether Mr Robinson was requiredto
comply. The situation was exacerbated by the absence of any clause in Mr
Robinson’scontract of employment, which could have clarified his obligations in this regard.

Ultimately, Mr Robinson reluctantly agreed to attend, but Western never finalised the
appointment times as they had proposed to do.Instead, Western proceeded to terminate Mr
Robinson’s employment almost two monthslater, without an independent medical
assessment.The termination letter referred to the employee’s failure to advise on a return to
workdate, his lack of cooperation with the employer’s requests and Western’s
resulting‘concerns about [his] capacity to return to work’, as the basis of Western’s decision.

The employee commenced proceedings under the Fair Work Act 2009 (Cth) (FW Act). The
FW Act prohibits employers from taking adverse action against an employee (such as
terminating their employment) where a “substantial or operative” reason for thetermination
includes the existence of a protected attribute (such as mental disability). MrRobinson alleges
that the decision to dismiss him was motivated by his mental disability.

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 ISSUES FOR CONSIDERATION

1) What are the circumstances under which termination of employment forincapacity

should occur or be justified?

2) Whether the employer’s action amounts to discrimination under the FW Act?

3) What is the significance of making a distinction between the ‘manifestations of

adisability’ and the disability itself?

4) Is there a comparable legal position in India?

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 SUMMARY OF ARGUMENTS

1) What are the circumstances under which termination of employment for

incapacity should occur or be justified?

Where the employee has a medical condition but is fit for duties, APS agencies can
rely on the employee’s non-performance or unsatisfactory performance of duties as
grounds for demotion or termination of employment. Where a Commonwealth agency
has concerns about the conduct of an ill employee it should be cautious about taking
disciplinary action, particularly if there is medical evidence that links the conduct to
the employee’s illness or other disability.

2) Whether the employer’s action amounts to discrimination under the FW Act?

Adverse action was taken against Mr Robinson because of his mental disability. It
was said that HR Manager made the decision to terminate Mr Robinson's employment
because of, or at least for, a reason which included his mental disability. The HR
Manager's concerns about Mr Robinson's capacity to return to work were because of
Mr Robinson's claimed psychiatric condition. The psychiatric condition had formed
part of the decision making processes of the HR Manager when deciding to terminate
Mr Robinson's employment and hence amounted to discrimination.

3) What is the significance of making a distinction between the ‘manifestations of a

disability’ and the disability itself?

The term “disability” employed in section 351(1) includes the “manifestations” of that
disability: Shizas v Commissioner of Police (“Shizas”). In the context of considering
a “physical disability”. The burden is on the employer to prove that adverse action
was taken because of the inherent requirements of “the particular position concerned”.
Although the exception in s 351(2)(b) does not come within the terms of the reverse
onus provision in s 361, it is highly unlikely that Parliament intended the onus to lie
with the employee to prove the negative, particularly in relation to a matter such as
this that would be peculiarly within the knowledge of the employer

4) Is there a comparable legal position in India?

There is no standard process to terminate an employee in India. An employee may be

terminated according to the individual labor contract signed between the employee
and the employer, if the contract defines a process for termination. Employers should
be aware, however, that labor laws supersede the provisions of labor contracts – any
termination policy or clause outlined within a contract should be checked against the
law by a professional.In the case that there is no labor contract, or the labor contract
does not define a method of termination, then the employer has to follow the state
law. In this scenario, an employer needs to abide by India’s distinct, state-specific
labor legislation in order to terminate the employee.

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 ARGUMENTS ADVANCED

I. WHAT ARE THE CIRCUMSTANCES UNDER WHICH TERMINATION OF EMPLOYMENT FOR

INCAPACITY SHOULD OCCUR OR BE JUSTIFIED?

The contract of employment can be terminated in relation to illness / incapacity in two

ways:
(1) termination for misconduct in cases of abuse of sick leave; or
(2) “frustration” of the contract in serious genuine cases of illness or injury.

Where the employee has a medical condition but is fit for duties, APS agencies can rely on
the employee’s non-performance or unsatisfactory performance of duties as grounds for
demotion or termination of employment (as provided for in s 24 and s 29 of the Public
Service Act 1999). In Hamden v Commonwealth of Australia1, the Federal Court on appeal
held that, in the circumstances of that case, a termination of employment on the ground of
nonperformance of duties following an unauthorised absence from work did not involve
unlawful disability discrimination under the Disability Discrimination Act 1982. Although
the employee was suffering medical conditions, the employer had an expert medical
assessment that the employee was fit for duties.
It is usually appropriate in the first instance to make reasonable attempts to accommodate an
employee’s disability. For example, if the employee’s performance remains unsatisfactory
despite reasonable accommodations, agencies can then potentially rely on the unsatisfactory
performance ground. De Sousa v Department of Education, Employment and Workplace
Relations2is an example of a case where the Fair Work Commission held that a termination
of employment on the unsatisfactory performance ground was not harsh, unjust or
unreasonable, even though the employee was suffering a medical condition that had some
impact on their capacity to perform modified duties.
Where a Commonwealth agency has concerns about the conduct of an ill employee it should
be cautious about taking disciplinary action, particularly if there is medical evidence that
links the conduct to the employee’s illness or other disability. State of Victoria (Office of
Public Prosecutions) v Grant3 is an example of a case where a court found that the employer
did not contravene s 351 of the FW Act in taking disciplinary action against an employee
who was known to be suffering from depression and other ailments at the time at which the
misconduct occurred. In that case medical evidence did not expressly or impliedly link the
misconduct and the illness, the decision-maker considered there was no link and the decision
to take disciplinary action was genuinely actuated by a concern with the employee’s
misconduct. The Full Federal Court observed at that: ‘It is, therefore, possible, depending on
the evidence, for what the primary judge called “disaggregation” to occur when ss 360 and
361 of the Act are being applied. As these authorities demonstrate it is possible for there to be
a close association between the proscribed reason and the conduct which gives rise to adverse
action and for the decision-maker to satisfy the court that no proscribed reason actuated the
adverse action.’

1
Hamden v Commonwealth of Australia [2010] FCA 924.
2
De Sousa v Department of Education, Employment and Workplace Relations [2013] FWC
10155.
3
State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC
184.

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In the event Employee’s employment is terminated due to his Disability, the Employee shall
be entitled to be paid his Base Salary and accrued but untaken holiday through the Date of
Termination.
How long the employment was likely to last in the absence of sickness
 Nature of the employment
 Nature of the illness or injury, how long it has continued and the recovery prospects
 Period of past employment, a long standing relationship being less easily destroyed
 The need of the employer for the work to be done and the need for a replacement
employee to do it
 The risk to the employer of acquiring obligations in respect of redundancy payments
or compensation for unfair dismissal to a replacement employee:
 Whether wages have continued to be paid
 Acts and statements of the employer in relation to future employment
 Whether in all the circumstances a reasonable employer could be expected to wait any
longer

In a recent Ontario case, Dragone v. Riva Plumbing Ltd., heard on September 21, 2007,
Justice Perell held that Ms. Dragone, an office clerk who was on a medical leave of absence
for approximately 14 months while undergoing treatment for metastasized breast cancer, had
not frustrated her contract because a “permanent incapacity to return to work” had not been
established. The Court stated that although Ms. Dragone was still receiving treatments and
was uncertain as to when she will be able to return to work, there remained the possibility
that she would be able to return. Justice Perell did note that a temporary illness could
constitute a frustrating event depending on the circumstances.

The recent Federal Court case of Robinson v Western Union Business Solutions (Australia)
Pty Ltd (‘Robinson’) is a warning to employers that terminating an ill employee could
expose the company to penalties and liability.
The applicant in Robinson was an ill employee who was away from work for a period of 7
months. The employee had medical certificates and doctors’ reports to justify his absence
from work.
The applicant’s employer requested that the employee undergoes an independent medical
examination so that his fitness for work can be determined. The employee refused. The
employee was consequently terminated, a few months after his refusal.
Western Union sent Mr Robinson repeated correspondence asking him about his return to
work status and directing him to attend an independent medical assessment. Mr Robinson
initially refused to attend an independent assessment, stating a report from his treating
doctors was sufficient. When Western Union advised Mr Robinson that the requirement to
attend an independent medical assessment was a lawful and reasonable direction and failure
to attend may provide the employer with a reason for dismissal, Mr Robinson stated he would
be happy to attend any medical assessment required. Western Union advised Mr Robinson
that he would be provided with new dates for a medical assessment, which it never provided.
In May 2017, Mr Robinson's employment was terminated.

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The employer argued that the employee was terminated because he could not fulfil
the ‘inherent requirement of his position’. This argument is supported by section 351(2)(b) of
the Act which provides that it is not discrimination if an employee takes adverse action
(termination of employment) because ‘of the inherent requirements of the particular position
concerned’ which the court ultimately decided that adverse action was taken against
employee.

Mr Robinson's employment was terminated by Western Union for the following reasons:

 he could not give any indication as to when he could return to work;

 his unreasonable failure to cooperate with the Company's attempts to obtain up to
date, specialist medical advice; and
 the Company's serious concerns about his capacity to return to work.

The court ultimately held that adverse action had been taken against the employee. This is
because the employer had stated in its termination letter and other statements that there were
concerns about the employee’s ‘capacity’ to return to work. The court held that there is no
distinction between ‘capacity’ and ‘mental disability’. Ultimately, they both reinforce each
other.
Furthermore, the employer did not frequently request an independent medical examination.
Further request should have been made by the employer.
The aggrieved employee was entitled to compensation of $370,144 which composed of: His
past economic loss; and Future economic loss for six months

II. THE EMPLOYER’S ACTION AMOUNTS TO DISCRIMINATION UNDER THE FW ACT

The provisions of the Fair Work Act of primary importance to the resolution of the present
dispute are ss 351, 360 and 361, which all appear in Pt 3-1 of the Act.

Section 351 provides in relevant part as follows:

“Discrimination

(1) An employer must not take adverse action against a person who is an employee ... of the
employer because of the person’s ... physical or mental disability ...
(2) However, subsection (1) does not apply to action that is:
...
(b) taken because of the inherent requirements of the particular position concerned; or ...”

There are at least three aspects of s 351 which presently assume relevance – the requirement
that action be taken “because” of a person’s disability; the meaning of the term “disability”;
and the meaning of the phrase “the inherent requirements of the particular position”.

As to the first aspect, the requirement that action be taken “because” of a person’s disability
invites attention to the reasons why action has been taken: Board of Bendigo Regional

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Institute of Technical and Further Education v Barclay4 (“Barclay”). When addressing s
346 of the Fair Work Act and the prohibition there contained against the taking of adverse
action “because” (inter alia) a person is a member of an industrial association, French CJ and
Crennan J observed in respect to that provision and s 361 (at 506):
“The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the
balance of probabilities, why the employer took adverse action against the employee, and to
ask whether it was for a prohibited reason or reasons which included a prohibited reason.”
This question is one of fact, which must be answered in the light of all the facts established in
the proceeding. Generally, it will be extremely difficult to displace the statutory presumption
in s 361 if no direct testimony is given by the decision-maker acting on behalf of the
employer. Direct evidence of the reason why a decision-maker took adverse action, which
may include positive evidence that the action was not taken for a prohibited reason, may be
unreliable because of other contradictory evidence given by the decision-maker or because
other objective facts are proven which contradict the decision-maker’s evidence. However,
direct testimony from the decision-maker which is accepted as reliable is capable of
discharging the burden upon an employer even though an employee may be an officer or
member of an industrial association and engage in industrial activity.
As to the last aspect of s 351, namely s 351(2)(b) and the reference to “the inherent
requirements of the particular position”. It may be accepted that “the inherent requirements
of the particular position” is not a reference to every requirement of that position: cf. X v
Commonwealth5 .There in issue, amongst other things, was a provision which provided that
discrimination was not unlawful if an employee was “unable to carry out the inherent
requirements of the particular employment”.

McHugh J observed (at 187 to 188) in respect to this provision found in s 15(4) of
the Disability Discrimination Act1992 (Cth):
“Whether something is an “inherent requirement” of a particular employment for the
purposes of the Act depends on whether it was an “essential element” of the particular
employment. However, the inherent requirements of employment embrace much more than
the physical ability to carry out the physical tasks encompassed by the particular
employment. Thus, implied in every contract of employment are obligations of fidelity and
good faith on the part of the employee with the result that an employee breaches those
requirements or obligations when he or she discloses confidential information or reveals
secret processes. Furthermore, it is an implied warranty of every contract of employment that
the employee possesses and will exercise reasonable care and skill in carrying out the
employment. These obligations and warranties are inherent requirements of every
employment. If for any reason – mental, physical or emotional – the employee is unable to
carry them out, an otherwise unlawful discrimination may be protected by the provisions of s
15(4).”

In the present case the Court found it was reasonable for Western Union to reach a
conclusion that Mr Robinson had failed to cooperate. However, it was the final reason, being
the Company's serious concerns about Mr Robinson's capacity to return to work, that the
Federal Court found contravened the general protections provisions of the Fair Work Act
2009, section 351(1).

4
Board of Bendigo Regional Institute of Technical and Further Education v Barclay, [2012]
HCA 32.
5
X v Commonwealth [1999] HCA 63, (1999) 200 CLR 177.

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The Court found that adverse action was taken against Mr Robinson because of his mental
disability. It was said that HR Manager made the decision to terminate Mr Robinson's
employment because of, or at least for, a reason which included his mental disability. The HR
Manager's concerns about Mr Robinson's capacity to return to work were because of Mr
Robinson's claimed psychiatric condition. The psychiatric condition had formed part of the
decision making processes of the HR Manager when deciding to terminate Mr Robinson's
employment.

The Court also found that Western Union could not rely on the "inherent requirements"
exception in 351(2)(b) of Fair Work Act 2009, where discrimination is not unlawful if the
employee is unable to carry out the inherent requirements of the job. The court held that
Western Union could not rely on this exception due to a substantial lack of evidence
regarding Mr Robinson's inability to perform the inherent requirements of his position. The
court reinforced that it is inability not difficulty that must be proven.1 The court identified the
difficulties in precisely defining what constitutes the 'inherent requirements' of a position but
it ultimately decided it was not necessary to address the issue in this matter.

Adverse action was taken against Mr Robinson because of his mental disability. It was said
that HR Manager made the decision to terminate Mr Robinson's employment because of, or
at least for, a reason which included his mental disability. The HR Manager's concerns about
Mr Robinson's capacity to return to work were because of Mr Robinson's claimed psychiatric
condition. The psychiatric condition had formed part of the decision making processes of the
HR Manager when deciding to terminate Mr Robinson's employment and hence amounted to
discrimination.

III. WHAT IS THE SIGNIFICANCE OF MAKING A DISTINCTION BETWEEN THE

‘MANIFESTATIONS OF A DISABILITY’ AND THE DISABILITY ITSELF?

Section 351(1) of the Fair Work Act prohibits employers from taking adverse action against
an employee because of the person’s physical or mental disability. Section 351(2)(b) provides
that section 351(1) does not apply where the adverse action is taken because of the inherent
requirements of the particular position. Of no controversy in this case is that Mr Robinson’s
psychiatric condition amounted to a “disability” for the purpose of section 351. What is
controversial however, is Justice Flick’s determination that Western Union’s termination of
Mr Robinson’s employment because of its “serious concerns about his capacity to return to
work” is tantamount to adverse action taken because of Mr Robinson’s mental
disability. Justice Flick explained,

…any lack of “capacity” of Mr Robinson to return to work was but a “manifestation” of his
claimed mental disability and a “manifestation” that could not be severed from that
disability
The case is a timely reminder of 3 matters about the FW Act test:
(a) the FW Act test generally does not distinguish between the disability and manifestations
of that disability,
(b) employers have the onus of proof in demonstrating that the firing was not ‘because’ of the
person’s disability, and

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(c) the Court will consider objective and subjective factors in determining whether disability
discrimination has occurred.

The FW Act test may be satisfied even where adverse action is taken because of
manifestations of the person’s disability. In Purvis v New South Wales (2003) 217 CLR 92,
the High Court held (under a different statute, the Disability Discrimination Act 1982) that it
was not unlawful disability discrimination for a school to expel a student whose violent
behaviour was a manifestation of his disability. That result flowed because the High Court
said the legislation in question required a comparison between the particular student and a
student without a disability who was similarly violent. By contrast, the FW Act test only
requires that the ‘adverse action’ be ‘because’ of the person’s mental disability, and there is
no requirement of a comparison between a person with a disability and a person without a
disability. In this regard, Flick J stated that he accepted that Western Union’s HR manager
genuinely believed that she had dismissed Mr Robinson because of his incapacity to attend
work, not his disability. Nevertheless, the Court held there was disability discrimination
because Mr Robinson’s performance issues were a manifestation of his disability and could
not be separated from them. Further, s 360 of the FW Act provides that ‘because of’ will be
satisfied even if the unlawful reason for the dismissal is only one reason among many. The
result is that the FW Act test isrelatively stringent, and may apply even where the employer
considers that the real issue is the person’s performance or conduct, not their disability.
The employer had stated in its termination letter and other statements that there were
concerns about the employee’s ‘capacity’ to return to work. The court held that there is no
distinction between ‘capacity’ and ‘mental disability’. Ultimately, they both reinforce each
other.
Furthermore, the employer did not frequently request an independent medical examination.

The term “disability” employed in section 351(1) includes the “manifestations” of that
disability: Shizas v Commissioner of Police 6 (“Shizas”). In the context of considering a
“physical disability”, Katzmann J there concluded (at 95 to 96):

“But the question here is not whether a condition and its manifestations may be
disaggregated; it is whether a particular disability can be severed from its manifestations.
With the greatest respect, absent a statutory definition to that effect, which is missing from
the act , I have real difficulty with the notion that “disability” can ever exclude the
manifestations of a condition. In the absence of a statutory definition, one must look to the
ordinary meaning of the word. In its ordinary meaning “disability” denotes both the
condition and its manifestations. ...

In any event, it would be “difficult, if not artificial” to draw a distinction between ankylosing
spondylitis and its manifestations. To say that a person has ankylosing spondylitis is to say
that he or she has, or may be susceptible to, problems of a particular kind with his or her
spine and related joints. The relationship of a disability to its manifestations is not one of
cause and effect; it is between a label and the things to which the label refers.

The Commissioner rightly accepted that the burden is on the employer to prove that adverse
action was taken because of the inherent requirements of “the particular position

6
Shizas v Commissioner of Police,(2017) 268 IR 71.

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concerned”. Although the exception in s 351(2)(b) does not come within the terms of the
reverse onus provision in s 361, it is highly unlikely that Parliament intended the onus to lie
with the employee to prove the negative, particularly in relation to a matter such as this that
would be peculiarly within the knowledge of the employer.7”

IV. IS THERE A COMPARABLE LEGAL POSITION IN INDIA?

There is no standard process to terminate an employee in India. An employee may be

terminated according to the individual labor contract signed between the employee and the
employer, if the contract defines a process for termination. Employers should be aware,
however, that labor laws supersede the provisions of labor contracts – any termination policy
or clause outlined within a contract should be checked against the law by a professional.In
the case that there is no labor contract, or the labor contract does not define a method of
termination, then the employer has to follow the state law. In this scenario, an employer
needs to abide by India’s distinct, state-specific labor legislation in order to terminate the
employee.

Under The Delhi Shops and Establishments Act of 1954, an employer cannot terminate an
employee who has been with the corporation for more than three months without giving the
employee at least 30 days of notice or a salary in lieu of such notice. The employer need not
give notice if misconduct is the cause for termination. However, the employee, in such
circumstances, should have an opportunity to reasonably explain the charge against them
prior to termination. Under the Maharashtra Shops and Establishments Act, an employer
cannot terminate an employee who has been with the company for more than a year without
giving the employee at least 30 days of notice in writing. If an employee has been with the
company for more than three months but less than a year, the employer needs to give at least
14 days of notice. The notice is not necessary if the employee is being terminated for
misconduct.
The Industrial Disputes Act of 1947 (“IDA”) applies to workers who are not working in a
managerial or administrative capacity. The Act states that any such employee who has been
employed for greater than a year can only be terminated after permission is granted by a
suitable government office. Additionally, an employer must provide valid reason for
termination and pay a severance amount that is equivalent to 15 days’ average salary for each
year of uninterrupted employment.
'Retrenchment' as defined in the IDA means termination by the employer of the service of a
workman for any reason whatsoever, otherwise than as a punishment inflicted by way of
disciplinary action and specifically excludes the events of voluntary retirement of workman,
retirement on reaching the age of superannuation, termination as a result of non- renewal of
contract of employment or termination on the ground of continued ill- health.

7
RailPro Services Pty Ltd v Flavel, [2015] FCA 504.

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 PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most respectfully prayed, that it may be pleased to

 Declare that the employer’s action amounts to discrimination under the FW Act and
reinstate the employee after providing compensation

And pass any other order that it may deem fit in the ends of equity, justice and good
conscience.

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