FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The cross-appeal be dismissed.

3.    The orders of the primary judge dated 30 November 2018 be set aside.

4.    The Appellant have leave to apply within 7 days of the publication of the Court’s orders for any order for costs it might be advised to seek.

5.    Unless an application is made pursuant to Order 4, there be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1    The Respondent, Mr David Robinson, was employed by Western Union Business Solutions (Australia) Pty Ltd (Western Union) as a “Client Executive” from February 2013 until his dismissal on 8 May 2017.

2    Mr Robinson commenced proceedings alleging that Western Union had contravened s 351 of the Fair Work Act 2009 (Cth) (Fair Work Act) and had engaged in unconscionable conduct in contravention of s 20 or s 21 of Sch 2 of the Competition and Consumer Act 2010 (Cth) (Competition Act). A single judge of this Court found that Western Union had contravened the Fair Work Act, awarding compensation and ordering that Western Union pay a penalty. Mr Robinson’s claim with respect to the Competition Act was unsuccessful: Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913.

Background

3    Mr Robinson’s employment history, including periods of leave taken, is set out at [5]-[12] of the primary judge’s reasons. Relevantly, in September 2016 Mr Robinson went on sick leave. He provided to Western Union a series of medical certificates that covered the periods 16 September to 18 October 2016 and 4 January to 8 February 2017. The medical certificates variously stated that he was unable to work due to “a medical condition”; “significant work related stress and depression”; and “a major depressive disorder associated with significant anxiety”.

4    Mr Robinson also provided a series of Work Cover certificates signed by his treating doctor. Each certified that Mr Robinson had “no current work capacity for any employment” for a specified period. The certificates covered the periods 19 October 2016 to 15 February 2017 and 17 March 2017 to 16 May 2017.

5    Western Union made inquiries of Mr Robinson as to his return to work on 20 October 2016, 8 November 2016 and 4 January 2017. Mr Robinson did not respond to the 20 October 2016 inquiry, and in reply to the 8 November 2016 and 4 January 2017 inquiries he provided additional medical certificates in similarly unspecific terms.

6    On 13 January 2017, Ms Chantal Chidiac, who at that time was Mr Robinson’s “HR contact” at Western Union, sent him a letter by email. Ms Chidiac’s position at that time was Senior Generalist, Human Resources. She worked beneath Ms Victoria Pickles, who was then the Head of Human Resources for Australia and New Zealand. Ms Chidiac’s letter noted Mr Robinson’s absence, and stated that the role he was performing at Western Union was one that “continue[d] to be required”. Ms Chidiac requested that Mr Robinson attend an independent medical assessment with a doctor of Western Union’s choosing (Dr Schreiner) who would provide a recommendation for a timeframe for Mr Robinson’s return to work. That would allow Western Union to facilitate Mr Robinson’s return to work. Ms Chidiac advised that Mr Robinson would be placed on unpaid leave from 1 February 2017. She offered two appointment times and requested that Mr Robinson confirm his availability to attend one of the appointments so that Western Union could make the necessary arrangements.

7    Mr Robinson did not reply to Ms Chidiac’s 13 January 2017 letter. On 27 January 2017, Ms Chidiac sent another email to Mr Robinson, asking that he confirm his attendance at one of the appointments detailed in her 13 January 2017 letter as soon as possible. She then advised that if a reply was not received by 30 January 2017, Western Union would need to make an assessment of Mr Robinson’s return to work without up to date medical information. Mr Robinson replied, requesting that Ms Chidiac contact his general practitioner, who had been involved in the care and management of his condition, and was best-placed to assist with a return to work plan.

8    Ms Chidiac and Mr Robinson continued to correspond regarding the necessity or otherwise of Mr Robinson being assessed by a doctor appointed by Western Union as opposed to his treating practitioner. In a letter dated 27 February 2017, Ms Chidiac provided three additional appointment times with Western Union’s nominated doctor, and requested that Mr Robinson advise of which was suitable so that the appointment could be confirmed. Ms Chidiac advised:

Please note that if you continue to refuse this direction and do not attend an assessment with Dr Schreiner before 8th March 2017, then Western Union will treat this refusal as a breach of your contract of employment and may terminate your employment without further notice.

9    On 8 March 2017, Mr Robinson replied. Among other things, he asked a number of questions about the proposed appointment with Dr Schreiner. He did not agree to attend an appointment. On 13 March 2017, Ms Chidiac responded. Relevantly, she wrote:

We are obtaining dates and times of Dr Schreiner’s availability. We will then advise you and ask that you nominate a suitable time. We will then confirm the appointment with you and Dr Schreiner.

Despite that, no further appointment dates were provided to Mr Robinson.

10    By a letter dated 8 May 2017, Mr Robinson’s employment was terminated. Ms Pickles signed a letter stating the reasons for her decision to terminate, which included the following:

TERMINATION OF EMPLOYMENT

I refer to your last email from 18 April 2017, with attached medical and Workcover certificates indicating that you are not fit to return to work.

You have not attended work for a period of 7 months, with 3 of these months constituting unpaid leave. In that time, you have refused multiple, reasonable attempts by Western Union Business Solutions (Australia) (the Company) to attend an independent assessment by Dr Istvan Schreiner, the company’s nominated practitioner.

Given that you cannot give any indication as to when you will return to work, your unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice and in light of the Company’s serious concerns about your capacity to return to work, the company has decided to terminate your employment. This termination will take effect on 8 May, and you will be paid two months’ pay in lieu of notice plus accrued but untaken leave entitlements.

11    The primary judge found that Western Union had contravened s 351(1) of the Fair Work Act, which provides as follows:

Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; …

(Emphasis added.)

12    His Honour had regard to the reasons given by Ms Pickles in the 8 May 2017 termination letter, and the reasons she gave in her affidavit at [81]-[84]:

[81]    I formed the belief that the Applicant was unreasonably failing to cooperate with the Respondent’s attempts to obtain up-to-date specialist medical advice about his condition. The Applicant failed to provide the confirmation requested for three sets of potential appointments, which I took as a refusal to attend, given he also queried the need for the appointments. I believed that it was likely that he was working elsewhere.

[82]    I formed the view that, alternatively, if the Applicant was being genuine in his claims that he was unable to return to work, then that state of affairs would continue for the indefinite future, particularly given his unchanging and brief medical certificates. There had never been any indication, in any document from a medical professional, that the Applicant would shortly be able to return to work, or that he was making progress over his almost eight months of leave. There was no indication of what we could do to assist him to return to work or to make reasonable adjustments to assist him. The reference in some of the workcover certificates to contacting a rehabilitation provider (referred to in paragraphs [100] and [105] of the Applicant’s affidavit) was directed at the workers compensation insurer and this suggestion was not followed up by the Applicant or his doctor with me or Ms Chidiac.

[83]    I did not terminate the Applicant’s employment because he suffered a mental disability. I find this allegation insulting. I am very aware of the requirement to support people suffering from mental disability and am currently supporting a number of employees with this issue.

[84]    I did not believe that the Applicant was genuinely unwell and likely to improve in the foreseeable future.

13    The primary judge found at [34] that, as at March 2017, Ms Pickles “could reasonably come to the conclusion that Mr Robinson had unreasonably failed to co-operate with the attempts made by Western Union to organise such an examination”. His Honour further found that Ms Pickles could have held genuine concerns as to Mr Robinson’s capacity to return to work at that time. Despite the fact that no further request was made, and that no additional appointment dates were offered to Mr Robinson, both conclusions “remained reasonably available to Ms Pickles as at May 2017”.

14    However, the primary judge found that the two reasons for dismissal provided by Ms Pickles were (at [36]):

•    The “unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice”;

and, however it be characterised or qualified:

•    “concerns” as to Mr Robinson’s “capacity to return to work”.

15    At [37], the primary judge noted that little difficulty would have been experienced in finding that the facts fell within s 351(1) of the Fair Work Act if it were not for Ms Pickles’ evidence that she had not terminated Mr Robinson’s employment because he suffered a mental disability, and that she found such an allegation insulting. Nevertheless, his Honour concluded that Mr Robinson was dismissed “because of” his mental disability. In so finding, his Honour found that there was no distinction between Mr Robinson’s capacity to return to work and his mental disability. His Honour found at [40] that, in the absence of any other reason going to Mr Robinson’s capacity to return to work, the reference to his capacity in the 8 May 2017 letter “can be nothing other than a concern occasioned (at least in part) by the claimed ‘psychiatric condition’”.

16    At [41], the primary judge found that any lack of capacity of Mr Robinson to return to work was a manifestation of his claimed mental disability, and could not be severed from that disability. In that regard, his Honour referred to and expressly adopted the language of Katzmann J in Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 (Shizas) at [119]. At [42], the primary judge concluded:

“Adverse action” was, accordingly, taken against Mr Robinson because of, or at least for a reason which included, a “manifestation” of his claimed mental disability and hence for reasons which included his mental disability: Fair Wok Act s 360. Part of the reasoning process which led to the taking of that action included “concerns” as to Mr Robinson’s “capacity to return to work”. It matters not, with respect, whether the reasoning process is perhaps better expressed in Ms Pickle’s affidavit than in her letter and whether the “concerns as to his capacity to return to work” was but an “alternative” or even a separate and “fall-back” reason for the action taken. Part of the reasoning process included a consideration given to his “capacity” to return to work: Fair Work Act s 360; cf. Barclay [2012] HCA 32 at [101], (2012) 248 CLR 500 at 534 to 535 per Gummow and Hayne JJ.

17    The primary judge accepted that the views expressed by Ms Pickles were genuinely held but found that she nevertheless had fallen foul of s 351(1) of the Fair Work Act by taking action that was in part motivated by a manifestation of Mr Robinson’s disability, being a concern as to his capacity.

The Appeal

18    Western Union appeals from the decision of the primary judge. It originally advanced five grounds of appeal, but later abandoned Ground 2. The remaining grounds of appeal are as follows:

1.    His Honour erred at [38] to [42] of the Decision by finding that the appellant took adverse action against the respondent because of his mental disability (and thereby contravened s.351 of the Fair Work Act 2009 (Cth)) (FW Act) when it dismissed him for reasons that included concerns about the respondent’s capacity to return to work.

…

3.    …[H]is Honour erred at [41] and [44] of the Decision by finding that the ‘manifestation’ of the respondent’s claimed mental disability could not be severed from his alleged disability in circumstances where the decision maker did not know whether the respondent, as a matter of fact, had a mental disability.

4.    His Honour erred at [45] of the Decision by rejecting the appellant’s alternative argument that if the appellant’s concerns about the respondent’s capacity was sufficient to fall within s.351(1) of the FW Act, it was also sufficient to satisfy s.351(2)(b) of the FW Act.

5.    In the alternative to the above, his Honour erred by assessing compensation against the likelihood that the respondent would have returned to work as opposed to the argument advanced by the appellant (which his Honour misconstrued at [102] of the Decision) that the proper approach in assessing compensation was to assess what would have occurred if the alleged contravention had not occurred. His Honour ought to have found that the respondent would still have been dismissed even if the alleged contravention had not occurred on the basis that the respondent would have been dismissed for his unreasonable failure to cooperate with the appellant’s attempts to obtain up-to-date specialist medical advice about his capacity to return to work.

19    Mr Robinson cross-appeals from the primary judge’s orders awarding him $125,000.00 in compensation for economic loss and $15,000.00 in general damages. The grounds of cross-appeal are as follows:

1.     The Court erred in assessing Mr Robinson’s economic loss as $125,000. In particular the Court erred in finding that:

a.     there was only a 50% chance that Mr Robinson would have returned to work but for his dismissal; and

b.     Mr Robinson’s commissions could have been reduced in circumstances where there was no admissible evidence, or insufficient evidence, to support that conclusion.

2.     The Court’s award of general damages of $15,000 was manifestly inadequate in circumstances where:

a.     Mr Robinson’s evidence, which the primary judge accepted, was that his dismissal caused him significant distress and humiliation and caused an aggravation of his psychological condition; and

b.     unchallenged expert medical evidence indicated that Mr Robinson’s dismissal aggravated his psychological condition.

20    Mr Robinson seeks orders from this Court substituting the award of the primary judge for damages in the sum of $320,114.00 in compensation for past economic loss; compensation for future economic loss in an amount to be particularised; and $25,000.00 in general damages.

Grounds 1 and 3

21    There is some overlap between Ground 1 and Ground 3. It is therefore convenient to consider these grounds together.

22    Ground 1 takes issue with the primary judge’s finding that Western Union contravened s 351 of the Fair Work Act in dismissing Mr Robinson for reasons that included concerns about his capacity to return to work. Ground 3 contends that the primary judge erred in finding that the manifestation of Mr Robinson’s claimed mental disability could not be severed from the disability itself, in circumstances where the decision maker (being Ms Pickles) did not know whether he actually had the claimed disability.

The parties’ submissions

23    Western Union’s written submissions with respect to these grounds are as follows:

10.    The resolution of Appeal Ground One turns on whether Mr Robinson’s capacity to return to work for a period of 7 months or otherwise, in the context of this case, was necessarily a manifestation of his disability (and Ms Pickles knew that this was so) such that it could not be disaggregated from his disability.

11.    The starting point is that the primary judge made no finding (and the evidence did not address) whether Mr Robinson’s inability to attend work for over 7 months or otherwise was a manifestation of his disability. This was fatal. The Appellant contends, as set out below: firstly, it was not established that Mr Robinson’s capacity to return to work was a manifestation of his disability, secondly, it was not established that the decision-maker, Ms Pickles, knew that this was a manifestation of the disability, and, thirdly, once the primary judge accepted Ms Pickles’ evidence, the primary judge should have found that the Appellant had discharged its onus under s.361 of the FW Act.

12.    The present matter is somewhat similar to that considered by the Full Court in State of Victoria (Office of Public Prosecutions) v Grant [[2014] FCAFC 184; 246 IR 441]. Mr Grant had been dismissed by Mr Hyland (an officer of the Office of Public Prosecutions) because of certain conduct he had engaged in. Mr Hyland gave evidence at trial in which he maintained that the only reason that he had terminated was his belief that Mr Grant had engaged in misconduct. The trial judge found that it was Mr Grant’s illness that led him to do the things he did that caused his dismissal, and Mr Hyland knew of the illness. At [50] to [53], Buchanan and Tracey JJ rejected the trial judge’s reasons: firstly, noting that Mr Hyland’s denial that Mr Grant’s medical condition played any part in his decision was not accepted by the primary judge for the sole reason that it must have been “entirely clear” to Mr Hyland that Mr Grant’s “conduct arose from or at the very least [was] in part caused by” Mr Grant’s ill health; and secondly, their Honours did not “accept his Honour’s conclusion that Mr Grant’s misconduct “was completely interwoven with his medical condition” and the related finding that the misconduct and the ill health could not “be disaggregated” as Mr Hyland was said to have done” as “[s]uch a finding was not open either on the evidence or consistently with the High Court’s reasoning in Barclay and CFMEU. … In a separate judgment, White J, after recognising that there may be some medical conditions where the condition and its manifestations are indistinguishable, stated at [80] that the trial judge did not have evidence indicating that “Mr Grant’s mental condition was of this kind” and “there was no evidence in the Circuit Court that Mr Grant’s conduct arose “wholly” out of his medical condition”.

13.    In the present matter, the error in the primary judge’s reasoning was, in effect, to assume that Mr Robinson’s capacity (or lack thereof) to work at the Appellant’s business for a period of 7 months or otherwise was a manifestation of his disability and to assume that Ms Pickles knew of that fact: without making any findings as to Mr Robinson’s disability and its manifestations; and in the absence of any evidence to support such findings. The evidence was that, in or around September 2016, Mr Robinson was suffering from an Adjustment Disorder with Depressed and Anxious Mood and/or Major Depression. It may be accepted that the disability is more than just the label of the condition, and extends to its manifestations. For the purpose of the argument, it may also be accepted that the manifestations of an anxiety or depressive disorder may present in loss of weight, sleeplessness, anxiousness, etc. However, it does not follow, and there was no evidence to establish, that inability to work at the Appellant’s business for 7 months, or for some other period, is a manifestation of that disorder, with or without appropriate medication. Nor was there any evidence to establish that Ms Pickles knew these matters. At its highest, the evidence established, through an expert medical report which Mr Robinson adduced in the proceedings, that he was suffering from an Adjustment Disorder with Depressed and Anxious Mood and/or Major Depression but this report provided a diagnosis at the stage of the proceedings and primarily for the purpose of seeking to establish that Mr Robinson had recovered and was fit to return to work for the purposes of compensation.

14.    Accordingly, even if Ms Pickles did dismiss Mr Robinson because of her concerns about his capacity to return to work there was no evidentiary basis to find that the dismissal was “because of” Mr Robinson’s disability or any manifestation of it. In fact, Ms Pickles’ evidence was that she did not know whether Mr Robinson was genuinely unwell or that his capacity to return to work was by reason of his alleged medical condition. Indeed, this was part of the reason why Ms Pickles wanted an independent medical examination. Once his Honour accepted Ms Pickles’ evidence that she did not dismiss Mr Robinson because he suffered a mental disability the Appellant had discharged its onus under s.361.

24    With respect to Ground 3, Western Union submits:

15.     In the alternative to Appeal Ground One, if somehow it was established that Mr Robinson’s incapacity to return to work was a “manifestation” of his disability, the evidence established that Ms Pickles had disaggregated the “manifestation” of the disability from the reasons for her decision to terminate employment.

16.    On any proper application of the principles in Barclay and CFMEU v BHP Coal, the inquiry into Ms Pickles’ actual reasons to dismiss Mr Robinson cannot result in a finding that she dismissed him “because of” his disability when she did not know one way or the other whether the “manifestation” of his disability was genuine or whether he was, in fact, genuinely suffering from a disability. By dismissing Mr Robinson because of “concerns about his capacity to return to work”, Ms Pickles had disaggregated the “manifestation” of Mr Robinson’s disability from her decision-making process due to a total lack of knowledge concerning the true state of Mr Robinson’s affairs. Her “concerns” were about that fact - ie. whether the Applicant’s claimed disability and inability to attend work were genuine.

17.     In this context the question posed by s.351 “is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker”. What is involved is not an exercise in characterisation; the Court is required to make a decision about the internal reasoning process of an alleged contravener. In Grant at [53], Buchanan and Tracey JJ recognised that “disaggregation” could occur when ss. 360 and 361 of the FW Act are being applied, “It is ... possible, depending on the evidence, for what the primary judge called “disaggregation” to occur when ss 360 and 361 of the Fair Work 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.” These observations are apposite to the present case. It is difficult as a matter of logic to conclude that a decision-maker has been actuated by a reason not known to her.

18.    In Shizas v Commissioner of Police [[2017] FCA 61 at [119]], Katzmann J disagreed with aspects of the obiter reasons in Grant that the manifestation of a disability could be disaggregated from the disability. Her Honour noted at [121], in relation to the specific condition of ankylosing spondylitis it is difficult, if not artificial, to draw a distinction between the condition and its manifestations. It might be the same with other physical disabilities (such as being a quadriplegic) where the manifestation of the disability is interwoven with the condition; it is obvious or known. However, it does not follow that all conditions are in that category, and, it begs the question as to what are the known manifestations of particular conditions? At [123], citing Qantas Airways Ltd v Christie [(1998) 193 CLR 280], her Honour acknowledged that the link between a disability and its manifestations must be assessed on a case by case basis. Further, in light of the peculiar facts in Shizas, her Honour did not have to deal with the circumstance where the manifestation of a disability is not known or where the claim is not accepted as genuine. In that situation, it would be contrary to the reasoning in Barclay and CFMEU v BHP Coal to find that action had been taken “because of” the disability (or a manifestation of the disability).

19.    Here, Ms Pickles had “disaggregated” the “manifestation” of the disability from the reason for termination in circumstance where she, first, did not believe or at least did not accept that the disability (including its alleged “manifestation”) was genuine (because she did not know if Mr Robinson was being “genuine in his claims”), second, did not know whether Mr Robinson lacked the capacity to work but had concerns as to whether he would return to work, and, third, gave evidence (which was accepted) that she did not dismiss Mr Robinson because he suffered a mental disability and she found such an allegation “insulting”. She had no knowledge of the true state concerning Mr Robinson and that is what she was seeking to have independently assessed. A reason for the termination was that Mr Robinson failed to cooperate with the Appellant’s attempts to obtain up-to-date specialist medical advice about his disability and his capacity to return to work. In such circumstances, (particularly given the standard of proof required to establish a contravention of the FW Act), the primary judge should have found that the Appellant did not dismiss Mr Robinson “because of” his disability and had discharged its onus under s.361.

(Emphasis omitted, footnotes omitted except where expressly set out.)

25    Mr Robinson contends that the case before the primary judge proceeded on a common assumption between the parties that Mr Robinson’s lack of capacity to attend work was because of his alleged disability. He submits that Western Union is precluded from raising a new issue on appeal, about which evidence could have been adduced at first instance that could have prevented the point from succeeding (citing Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8). Mr Robinson contends that Ground 1 seeks to avoid liability on the basis that no evidence was adduced at trial to establish that his lack of capacity was a result of his disability.

26    In support of this contention, Mr Robinson relies on his opening submissions in the court below, and Western Union’s responsive submissions, which stated at [3.5] and [3.6]:

… on any proper reading of Ms Pickles’ evidence it is clear that her reason for dismissing the applicant was because … (b) if the applicant was unwell then he was not fit for work (which, on the respondent’s case amounts to the applicant not being fit to perform the inherent requirements of the role) … and had not provided the respondent with any indication that his alleged disability was improving such that he would be returning to work in the near future.

27    Mr Robinson also relies on an exchange that took place between Western Union’s counsel and the primary judge; the case run by Western Union; and unchallenged evidence as to Mr Robinson’s medical conditions and their symptoms, including expert evidence that his capacity to work was linked to his illness. Mr Robinson submits that it was in that context that the primary judge made findings at [39] and [40] that his lack of capacity to return to work was a manifestation of his disability.

28    The certificates and reports issued by Mr Robinson’s treating doctors and psychologist were admitted into evidence before the primary judge on the limited basis of establishing the fact of certification of unfitness, rather than establishing the truth of their contents. Mr Robinson submits that that was all that was necessary: the certificates prevented Mr Robinson from returning to work, and his return was dependent on a return to work plan to be developed by Western Union.

29    Mr Robinson submits that the first and third grounds of appeal are “variations on a theme, namely, that a ‘mental or physical disability’ for the purposes of s 351(1) of the [Fair Work] Act is a diagnosed condition only”. Mr Robinson contends that the Court would be required to find that Shizas was wrongly decided in order to accept Western Union’s submissions at [10]-[19]. Mr Robinson submits:

22.    As Katzmann J said in Shizas at [119]-[121], in its ordinary meaning “disability” does not just mean a diagnosed condition regardless of its manifestations; 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”. As her Honour explained, as a matter of language, it is an error to ask whether a disability includes the incapacity caused by the underlying condition; the incapacity is the relevant disability.

23.    The statutory context confirms that textual analysis. In Shizas Katzmann J pointed out that a different view would leave s351(2)(b) all but otiose:

[125] Further, even if a distinction could sensibly be drawn between a disability “per se” and the limitations and vulnerabilities that make up that disability, in my opinion, as a matter of statutory construction, the word “disability” in s 351 must include both. If the prohibition in s 351(1) extended only to adverse action taken because of the protected attributes “per se”, it would be a rare situation in which the defence ins 351(2)(b) would have any work to do. ... Just about the only kind of circumstance in which the defence would operate would be a circumstance of the peculiar kind arising in Qantas v Christie where, because of the operation of an international convention and foreign domestic laws, age “per se” prohibited pilots from flying to many of the airline’s destination countries.

24. Similarly in Railpro Perry J said:

[124] ... That such manifestations or symptoms are embraced within the term is consistent with the existence of the defence, for example, in s 351(2)(b) of the FW Act excluding adverse action taken because of the inherent requirements of the job. Thus, as Smith FM explained in this regard in Stephens v APC at 441 [88], this “defence” permits adverse action by reason of a disability “where it can be shown that functional or practical effects of a disability are incompatible with the employment of the disabled person.” ...

25.    Finally, and to the extent any ambiguity remains, it is answered by extrinsic materials. The relevant Explanatory Memorandum illustrates the operation of s 351(1) by reference to the example of a pregnant employee being denied a promotion because she would be able to do the job for only a short time before taking parental leave. The example thus demonstrates that the discrimination prohibited by s 351(1) includes not only discrimination taken by reason of a specific prejudice against the particular attribute (e.g. a particular disability, or pregnancy) but also any attendant incapacity.

26.    The considered views adopted by Katzmann and Perry JJ and buttressed by the Explanatory Memorandum are consistent with the approach adopted in proceedings under disability discrimination laws generally.

(Emphasis and citations omitted.)

30    Mr Robinson submits that Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 (Barclay), Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 (BHP Coal) and Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 (Endeavour Coal) do not assist Western Union, because the reason for dismissal in each case was unrelated to the industrial activity or the exercise of the workplace right. In each of those cases, the decision maker was able to demonstrate that the reason for dismissal was distinct from the prohibited reason. Mr Robinson submits that in the present circumstances, the medical condition and the incapacity are one and the same and there is no room for “disaggregation”, as was the case in Shizas.

31    Additionally, Mr Robinson submits that the present circumstances are not analogous to those that arose in Victoria v Grant [2014] FCAFC 184 (Grant), such that the reasons of Buchanan and Tracey JJ at [51] and [58] are of no assistance to Western Union.

32    Mr Robinson submits that Ground 3 would achieve the same result as Ground 1, but by a different route. He submits that if the construction of s 351 of the Fair Work Act proposed by Western Union were accepted, an employer would never be found to have taken adverse action against an employee “because” of a disability if the decision maker knew only of the manifestation of the disability but not its cause (being the disability itself). Mr Robinson asserts that the authorities clearly establish that the manifestation is the disability, and as a consequence, knowledge of both the manifestation and the condition is unnecessary. In that regard, Mr Robinson’s submissions refer to the finding of Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 (RailPro) at [125] that “the fact that [the underlying condition] was not diagnosed before his dismissal is not necessarily an impediment to finding that [the employee] was dismissed because of his disability”. Mr Robinson submits that the construction advanced by Western Union “proceeds from a false distinction and cannot stand consistently with the authorities”.

33    Mr Robinson submits that Western Union’s contention would undermine the protective purpose of s 351(1) of the Fair Work Act, as the section would only apply if a decision maker were “fully apprised of evidence of unusually intensive medical examination, showing not just manifestations but also definitively opining as to their cause”. It would also create an incentive for decision makers to avoid being apprised of such medical evidence, “close their eyes to it”, or irrationally doubt its veracity.

34    In reply, Western Union disputes that there was any common assumption between the parties that Mr Robinson’s lack of capacity was a manifestation of his disability. It contends that Mr Robinson’s Amended Statement of Claim pleaded that the alleged depressive illness was a disability within the meaning of s 351(1) of the Fair Work Act (at [11]-[12]), but not that any incapacity to work was a manifestation of that disability. It further contends that it did not admit those matters, and the question of the causal link between the incapacity to work and the disability was a live issue. Western Union also notes that Mr Robinson was on notice prior to the commencement of the trial that Ms Pickles’ evidence would be that her state of mind at the time of making the dismissal decision was that she did not accept that Mr Robinson was unwell and believed that he was working elsewhere.

35    Western Union further submits that the parties’ respective opening submissions do not expose a common assumption that Mr Robinson’s incapacity to work was caused by his alleged disability. Rather, Mr Robinson submitted that the disability could not be distinguished from its manifestations. Western Union notes that the medical certificates provided by Mr Robinson were admitted by the primary judge only for the limited purpose of establishing that they had been provided, and were not admitted to establish the truth of their contents. Western Union submits that the fact that objection was taken to their being admitted, and that they were admitted only on that limited basis, “further crystallised a dispute between the parties”.

36    The medical reports adduced at trial did not establish that Mr Robinson’s incapacity to work was a manifestation of the diagnosed medical condition. Western Union further notes that those medical reports were produced ex post facto, and could not be relevant to Ms Pickles’ state of mind at the time of the dismissal decision. Western Union also submits that the exchange between counsel and the primary judge relied upon by Mr Robinson is selective and that counsel indicated that the matter was in issue between the parties.

37    Western Union submits that the contention advanced by Mr Robinson that Ground 1 and Ground 3 are “variations on a theme” is an incorrect characterisation of the grounds. Ground 1 relates to the evidentiary gap in Mr Robinson’s case regarding whether or not his incapacity was a manifestation of his alleged disability. Ground 3, while related, raises a different proposition as to Ms Pickles’ reasons for making the dismissal decision. Contrary to what is submitted by Mr Robinson, it would not be strictly necessary for the Court to find that Shizas was wrongly decided, because the link between a disability and its manifestations must be assessed on a case by case basis. To the extent that Shizas stands for a broader proposition that a disability includes its manifestations in all circumstances, Western Union submits that proposition is not part of the ratio of the case and, in any event, is wrongly decided on the basis of the decision in Grant, in particular the reasoning of White J at [80].

38    Western Union further submits that it would be erroneous for the Court to assume that a manifestation of a disability is part of that disability when there may be a number of other explanations for the manifestation that are unrelated to the disability, and these may not be known to the decision maker. The Court should interpret s 351 of the Fair Work Act consistently with the interpretation of s 340. Western Union relevantly relies on the reasoning of the Full Court in Endeavour Coal at [91] that “the inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker”. If the decision maker does not know that the manifestation is the disability, then the disability cannot be a subjective reason for the action taken. Western Union draws a parallel between that and the reasoning in Barclay that the search for the motivation of a decision maker cannot include “unconscious” elements (at [146]-[147] per Heydon J and [44] per French CJ and Crennan J).

39    Western Union contends that Mr Robinson’s reliance on Perry J’s decision in RailPro is misplaced, and that he has selectively quoted from [124] of her Honour’s reasons, omitting the final sentence, which is as follows:

However, particularly close consideration needs to be given to the reasons of the employer for taking the adverse action where it may not be apparent that the symptom or manifestation is in fact a symptom or manifestation of a disability, as is the case here.

At [128], her Honour then found:

Rather the findings and uncontested evidence were such that his Honour should have found that the statutory presumption in s 361 of the FW Act has been rebutted, as, in the absence of knowledge of a disability and, more particularly that Mr Flavel’s behaviour at his assessment was a symptom of a disability, the decision-makers could not be found to have dismissed Mr Flavel because of his disability.

40    In Western Union’s submission, RailPro provides a “cogent example” of why it is necessary to establish that the decision maker knows that the asserted manifestation is in fact a manifestation of the disability in order to establish a contravention of s 351 of the Fair Work Act. If Ms Pickles did not know, or was unsure, that Mr Robinson’s lack of capacity to attend work was caused by his disability, then she could not have dismissed him “because of” the disability for the purposes of the Act.

41    Contrary to Mr Robinson’s submissions, the relevant authorities do not establish that the manifestation is the disability. Rather, Grant and RailPro stand for the proposition that more is required to establish a breach of s 351 of the Fair Work Act. Both Barclay and BHP Coal focus the relevant inquiry on the actual reasoning process taken by the decision maker. This can be contrasted with the outcome-focused inquiry that is undertaken in relation to a claim pursuant to s 15 of the Disability Discrimination Act 1992 (Cth).

42    With respect to Mr Robinson’s submissions that the construction advanced by Western Union would undermine the “protective purpose” of s 351(1), it submits as follows (at [17]-[18]):

First, to speak of the protective purpose of the provision says little when the scope of the provision is limited in its operation to a decision that has to be shown to made for the proscribed reason, and is attenuated by 'defences' or qualifying provisions. Second, it is trite that legislation of this type - like others - reflects a political compromise, which does not pursue its purpose "at all costs"; "the question is how far does the legislation go in pursuit of that purpose or object?". Third, taking those matters together, it may be conceivable that there may be circumstances where the manifestation of a disability is so interwoven with the disability such that it is observable or known that the taking of action because of the manifestation would contravene s.351 of the FW Act (e.g. where the disability is physical and the manifestations of it are obvious/observable and known to the decision maker). Contrary to RS[34], it is not necessary for the decision maker to be "fully apprised of evidence of unusually intensive medical examination". All that is required is that the decision maker was sufficiently aware that the manifestation is a manifestation of the disability. To the extent that a decision maker seeks to "ensure they were never apprise of such medical evidence …” those are matters that can be tested. It is no different to the decision-maker in Barclay stating that she did not make the decision to terminate because Mr Barclay was a union delegate, but because in discharging his duties as a union delegate he sent an offensive email.

Third, s.351 exists in an industrial and legislative landscape where the rights of injured workers are well protected and it is a civil remedy provision contravention of which may sound in a civil penalty. In this context, s.351 of the FW Act should be construed in favour of the employer (respondent below) and consistently with the balance of legislative purpose addressed in Barclay at [61]-[62].

Consideration

43    It is settled law that for the purposes of s 351(1) of the Fair Work Act it is the reasons of the effective decision maker which are to be looked to in determining whether or not an adverse action has been taken because of an employee’s race, colour, sex, sexual orientation age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. In this proceeding, the primary judge concluded at [33] and [36] of his Honour’s reasons that Ms Pickles had two reasons for terminating Mr Robinson’s employment:

(1)    Mr Robinson’s unreasonable failure to attend an independent medical examination, described in the 8 May 2017 letter (termination letter) as “[his] unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice”;

(2)    Ms Pickles’ concern or uncertainty as to Mr Robinson’s capacity to return to work, described in the termination letter as “the Company’s serious concerns about [his] capacity to return to work”.

44    The primary judge accepted that both of the reasons for dismissal (as set out at [33] and [36]) were “reasonably available” as at May 2017 (see at [34]). These were also the two reasons pleaded by Western Union and those on which it opened and closed its case. I reject that the case was conducted before the primary judge on a common assumption between the parties that Mr Robinson’s lack of “capacity to return to work” was a result of his alleged disability.

45    To the extent that the decision to terminate Mr Robinson’s employment was taken on the basis that he had unreasonably failed to cooperate with his employer by attending an independent assessment, I take it to be uncontentious that, standing alone, that reason for termination did not contravene s 351(1) of the Fair Work Act. However, adverse action (which dismissal undoubtedly is) can be taken for a prohibited reason - in this instance, mental disability - notwithstanding that other reasons also may have been relevantly in the mind of the decision maker: see s 360 of the Fair Work Act

46    The primary judge concluded that Ms Pickles’ second reason for termination revealed that adverse action had been taken in contravention of s 351(1) of the Fair Work Act. More specifically, the primary judge:

(1)    At [37], [55] and [56]: accepted Ms Pickles’ evidence that she “did not terminate the [Appellant’s] employment because he suffered a medical disability” and that she found that allegation “insulting”; and

(2)    At [38] to [40]: concluded, however, that Ms Pickles’ second reason for termination – “concerns about [Mr Robinson’s] capacity to return to work” – was based on Mr Robinson’s disability “because no distinction can be drawn … between his ‘capacity’ to return to work and his mental disability”: at [39].

47    For the latter proposition, his Honour relied on the reasoning of Katzmann J in Shizas to the effect that the word “disability” includes “manifestations” of the disability: at [41]. His Honour concluded that any lack of “capacity” on the part of Mr Robinson to return to work was but a “manifestation” of his claimed mental disability and was one which could not be “severed” from it: at [41].

48    As I explain later in my reasons, contrary to the submission of the Respondent, I am not persuaded that Shizas was incorrectly decided. There are, notwithstanding, significant difficulties with the primary judge’s reasoning:

(1)    It is not the case that Ms Pickles took the view that Mr Robinson lacked capacity because of his claimed mental disability, and that was a reason for her decision to terminate his employment. Rather, it was the simple fact that Ms Pickles thought that if Mr Robinson was genuinely unwell for such an extended period, then it was unlikely he would be able to return to work; the unknown reason for that inability to attend work did not matter. The effect of the primary judge accepting Ms Pickles’ evidence that she “did not terminate [Mr Robinson’s] employment because he suffered a mental disability” was that he accepted that it was only the fact that Mr Robinson would not return to work (and thus could not perform the inherent requirements of the job) which was the second subjective reason for termination. By accepting her evidence, the primary judge accepted that Mr Robinson was not dismissed for reasons that included his disability.

(2)    Mr Robinson’s claimed inability to return to work, on the facts before the primary judge, was not a “manifestation” of the disability, even though it may have been a consequence of it. Shizas is not authority for the proposition that every consequence of a disability is to be regarded as a “manifestation” of it. A manifestation of a disability includes, for example, symptoms such as lethargy or fatigue. A consequential inability to attend work because of lethargy or fatigue is a result of the manifestation. It is not a manifestation of the disability itself.

49    It can be accepted that Ms Pickles knew Mr Robinson was claiming to be ill, but her evidence in the proceeding was that she “didn’t believe that Mr Robinson was unwell” and that she had “no evidence to give [her] any indication that [his illness] was confirmed, and [she] was asking for that” (T82.35).

50    At [56] of the primary judge’s reasons, his Honour made critical findings of fact in those regards:

The genuineness of the views held by Ms Pickles is accepted. She presented as a witness who genuinely found offensive the notion that she would take action by reference to a person’s mental disability. But the conclusion that has been reached is that – no matter how genuinely Ms Pickles believed that action should not be taken because of a disability – she nevertheless fell foul of s 351(1) by taking action motivated in part by a “manifestation” of Mr Robinson’s disability, namely a concern as to his “capacity”.

51    As I apprehend it, the findings of the primary judge require this Court to proceed on the basis that his Honour accepted that Ms Pickles was not aware of any manifestation of Mr Robinson’s mental disability. That is, of course, subject to whether she might have accepted Mr Robinson’s claim that his reason for not turning up to work was that he was unwell. But I take his Honour’s finding at [56] as accepting Ms Pickles’ evidence that she had genuinely disbelieved that Mr Robinson was ill as he had claimed. It is uncontentious that Ms Pickle’s mind was the operative mind of the Appellant when Mr Robinson’s employment was terminated.

52    The reason Ms Pickles had given for her want of belief in that claim was that Mr Robinson had failed to cooperate with respect to an independent medical examination and that she had been informed that he was working elsewhere. I can identify nothing in his Honour’s reasons as would suggest that the primary judge did not accept her evidence in those regards.

53    In those quite specific factual circumstances it was not available to the primary judge to have nonetheless reasoned that Ms Pickles (whose credit he accepted) was motivated by an undisclosed awareness of a manifestation of Mr Robinson’s claimed mental disability when she took action to dismiss him for the second reason.

54    His Honour made no express findings to that effect. To the extent that such a finding might be inferred, there is no basis for such an inference.

55    In my view, the “serious concerns” Ms Pickles expressed regarding Mr Robinson’s “capacity” in his dismissal letter did not imply an acceptance on her part of the truth of his claims to be unwell.

56    There is nothing in the termination letter Ms Pickles sent to Mr Robinson suggestive of a “but if I am wrong” form of reasoning regarding Ms Pickles’ then want of belief in the truth of Mr Robinson’s claims.

57    There is no analogy between the two reasons stated in the termination letter and the consideration which was dispositive in Water Board v Moustakas [1988] HCA 12; 180 CLR 491 in which Mason CJ, Wilson, Brennan and Dawson JJ at 497 held that it was not open for a party on appeal to run a case not advanced in a trial on the basis of an alternative argument.

58    As noted, the primary judge accepted that both of the reasons for dismissal were “reasonably available” as at May 2017 (see at [34]).

59    Contrary to the reasoning of the learned primary judge, I do not accept that Ms Pickles' dismissal of Mr Robinson for the second reason could be found to have been because of his mental disability “because no distinction can be drawn … between his ‘capacity’ to return to work and his mental disability”. I reject that such a conclusion is necessitated by Shizas.

60    In Shizas Katzmann J correctly rejected as entirely artificial the submission that an employer’s taking adverse action in awareness of the manifestation of a disorder (in that proceeding, the applicant’s spinal infirmity) did not establish that the adverse action had been taken against that person because of their medically diagnosed physical disability, in that case ankylosing spondylitis. As her Honour bluntly put the proposition, that “would be as artificial as saying that a person was refused employment not because he was a paraplegic but because he had no control over his legs”.

61    The facts in Shizas are entirely remote from the present case. In the present case Ms Pickles did not believe that Mr Robinson was ill. Applying the Shizas analogy, the primary judge accepted that Ms Pickles had believed neither that Mr Robinson was a paraplegic nor that he lacked control over his legs.

62    The “serious concerns” Ms Pickles referred to in her termination letter were simply that Mr Robinson had not attended work for a period of seven months, had refused multiple opportunities to submit himself to an independent medical assessment and had given no indication of when he would return to work. Those serious concerns had led Ms Pickles to doubt that Mr Robinson would in the future be capable of fulfilling the inherent requirements of his employment: that is, turning up for work.

63    There was no available foundation for the primary judge to have linked Ms Pickles’ “serious concerns” in those respects to Ms Pickles having taken the decision to terminate Mr Robinson’s employment either because of his disability or because of her awareness of a manifestation of it.

64    I am satisfied it was not open to his Honour to have concluded that Mr Robinson’s dismissal was adverse action taken against him because of his mental disability as prohibited by s 351(1) of the Fair Work Act.

65    In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 Gray and Bromberg JJ reasoned at [28]:

The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.

66    Having regard to the primary judge’s findings, Mr Robinson’s disability was neither subjectively Ms Pickles’ reason for dismissing Mr Robinson, nor objectively was it what had actuated her conduct. It was not relevantly the, or a, real reason for his dismissal.

67    I would uphold Grounds 1 and 3 of the appeal.

Ground 4

68    Ground 4 contends that the primary judge erred in rejecting Western Union’s alternative argument that if its concerns about Mr Robinson’s capacity were sufficient to fall within s 351(1) of the Fair Work Act, they were also sufficient to satisfy s 351(2)(b) of the Act.

The reasoning of the primary judge

69    The primary judge’s reasoning as is relevant to this ground is as follows:

45    Also rejected is a separate but related submission that the action taken fell outside s 351(1) because the action was “taken because of the inherent requirements of the particular position concerned” and hence fell within the exception in s 351(2)(b). If, contrary to its primary submission that “concerns” as to an incapacity to return to work was not sufficient to fall within s 351(1), the fall-back submission was, in effect, that if “concerns” as to incapacity was sufficient to fall within s 351(1) it was also sufficient to satisfy s 351(2)(b). The effect of such an argument was that the moment a medical certificate was provided which stated that an employee was unfit to return to work in the foreseeable future, it necessarily followed that the employee could not satisfy the “inherent requirements” of his employment – namely his capacity to undertake any work at all.

46     If that submission prevailed, the broader the reach of s 351(2)(b), the more reduced would become the protection afforded by s 351(1). Some difficulty would have been expressed in respect to such a construction of ss 351(1) and (2)(b). A more confined operation of s 351(2)(b) may well have been more consistent with permitting s 351(1) a broader scope of operation.

47     An identification of the “inherent requirements” of a position are not necessarily to be determined by reference to the express terms of the contract of employment: cf. Qantas Airways Ltd v Christie [1998] HCA 18, (1998) 193 CLR 280. In the context of considering a contract of employment of a pilot who had attained the age of sixty years, Brennan CJ there observed (at 284):

[1] … I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.

Justice Gummow in that case likewise ascribed to the phrase “inherent requirements” a meaning which “suggests an essential element of that spoken of rather than something inessential or accidental”: [1998] HCA 18 at [114], (1998) 193 CLR at 318.

48     Wherever the line may otherwise have been drawn, however, an employer who takes action because an employee is unable by reason of a mental disability to carry out the terms of his employment may well fall within the protection afforded by s 351(2)(b): cf. X v Commonwealth [1999] HCA 63 at [31], (1999) 200 CLR at 187 to 188 per McHugh J.

49     There nevertheless remain difficulties with defining precisely the outer limits of what constitute the “inherent requirements” of a position.

50     But those difficulties need not be resolved in the present proceeding.

51     Those difficulties need not be resolved in the present case because no decision had been taken by Ms Pickles as to the actual capacity that Mr Robinson could bring to his employment and whether he had the capacity to undertake the “inherent requirements” of his position. Although the taking of adverse action to terminate the employment of Mr Robinson included as part of the reasoning process “concerns” about his “capacity to return to work” – and hence fell within s 351(1) – no decision had been taken as to the extent of his incapacity or (indeed) whether or not he was in fact incapacitated for work. To fall within the reach of s 351(2)(b) a decision, it is considered, must be taken as to whether an employee can or cannot satisfy “the inherent requirements of the particular position”. It is only when such a decision has been taken that it can be concluded that s 351(1) “does not apply” to the action taken “because of” those inherent requirements.

52     The position of Ms Pickles at the stage in the decision-making process when Mr Robinson’s employment was terminated was correctly stated in her 8 May 2017 letter – the letter correctly stating that she had as at that date no more than “concerns” as to the capacity of Mr Robinson to return to work. The position at that stage in her decision-making process was only reinforced by her evidence in cross-examination that she was in no position to form a view that Mr Robinson could not satisfy the inherent requirements of the position without more information including the independent assessment that Western Union had long been seeking.

53     Given this conclusion, it is unnecessary to resolve the further but related submission advanced on behalf of Mr Robinson that any decision – if reached – would have to be the result of a “rational assessment” and that no such rational assessment was undertaken in this case.

The parties’ submissions

70    Western Union submits that, on a proper analysis of the evidence, Mr Robinson was dismissed “because of” a failure to meet the inherent requirements of the role in question, satisfying s 351(2) of the Fair Work Act. That subsection makes it clear that s 351(1) does not apply to action that is taken because of the inherent requirements of the role.

71    Western Union further submits that s 352 of the Fair Work Act provides “a complete prohibition on dismissing an employee for a temporary absence from work due to illness or injury” as prescribed by reg 3.01(5) of the Fair Work Regulations 2009 (Cth) (Regulations). Pursuant to the Regulations, an employer cannot terminate an employee because of an absence due to illness where that absence has occurred for less than three months in any 12 month period. Western Union submits that the evident intention of ss 351(1), 351(2)(b) and 352 of the Act is to protect an ill or injured employee from dismissal within that period of time. After that time has passed, and subject to reg 3.01(4) of the Regulations, an employer can dismiss an employee on the basis of absence caused by illness or injury, including a disability that would otherwise be protected by s 351(1) of the Act. Western Union submits that an inability to attend work for a period of over three months might be regarded as an indication that an employee will be unable to perform, pursuant to their contract of employment, a fundamental inherent requirement of any position.

72    Western Union relies on Ms Pickles’ evidence that she thought that if Mr Robinson were genuinely unwell, his inability to attend work “would continue for the indefinite future, particularly given his unchanging and brief medical certificates” (at [82] of her affidavit). The only evidence before her regarding Mr Robinson’s ability to attend work was that he lacked current capacity for any employment.

73    Western Union submits that the primary judge’s finding that Ms Pickles had not made a decision as to “inherent requirements” of the role in question assumed that a specific decision was required, despite the circumstances of Mr Robinson having been absent for a period of approximately seven months. In those circumstances, it was not necessary for Ms Pickles to turn her mind to the specific inherent requirements of Mr Robinson’s role in order to trigger s 351(2)(b) of the Fair Work Act. It was sufficient for Ms Pickles to decide that, if Mr Robinson was unfit for work at all (on the basis of his medical certificates), then she considered he would remain so for the indefinite future, and on that basis to hold concerns about his capacity to work.

74    Western Union submits that it must follow that if an employee is unable to return to work on the basis that they have no capacity, and have not attended for seven months, then they are unable to fulfil “the most fundamental inherent requirement”, namely attending to perform the role. Western Union submits that, in those circumstances, it is artificial and unnecessary for a decision maker to specifically turn their mind to the inherent requirements of the role when an employee is not performing the most fundamental aspect. Western Union submits that it follows that s 351(2)(b) of the Fair Work Act was engaged. Western Union submits that if Mr Robinson was unwell as he had been claiming, he was not fit to perform the inherent requirements of his role.

75    Mr Robinson submits that the s 351(2)(b) defence can only be established by Western Union if it discharges its burden of:

(a)    identifying “the particular position concerned”; and

(b)    proving that the dismissal was “because of the inherent requirements of the particular position concerned”.

76    He submits that the primary judge correctly concluded at [51] that Western Union had failed to discharge its onus, as the evidence was that Ms Pickles had not made any decision as to Mr Robinson’s actual capacity with respect to the inherent requirements of his role. Ms Pickles’ affidavit did not assert any belief that Mr Robinson was unable to fulfil the inherent requirements of his position. In fact, she conceded under cross-examination that as at 8 May 2017 (being the date of termination), she was unsure about his fitness for work, had doubts about his capacity, and did not have enough information to form a view as to whether he could fulfil the inherent requirements of the role. Accordingly, it had been open to the primary judge to conclude that no decision had been made as to the extent of Mr Robinson’s incapacity, or whether he was incapacitated at all, as his Honour did at [51].

77    In reply, Western Union submits that the inherent requirements “defence” contained in s 351(2)(b) does not require a separate explicit decision or statement from the decision-maker that they are satisfied an employee is unable to perform the inherent requirements of the position in question. Rather, that section applies where the action is taken because of the inherent requirements of the position. Western Union relies on Katzmann J’s findings in Shizas at [181] and [184] as follows:

181    The real question that arises is whether s 351(2)(b) can be satisfied by the Assistant Commissioner’s honest belief that Mr Shizas did not meet the inherent requirements of the particular position concerned, even if that belief may have been mistaken.

…

184    The inquiry posed by s 351(2)(b) is whether the adverse action was taken “because of” the inherent requirements of the particular position. It is well established that the words “because of”, in Pt 3-1 of the FW Act, invite attention to the actual reasons of the decision-maker. There is no warrant for departing from that approach in relation to s 351(2)(b). While a decision made predominantly because of prejudice or ignorance may well not be a decision made because of the inherent requirements of the particular position, I do not accept that that is the position in this case.

78    Western Union relies on Ms Pickles’ evidence at [82] of her affidavit as follows:

...if the Applicant was being genuine in his claims that he was unable to return to work, then that state of affairs would continue for the indefinite future, particularly given his unchanging and brief medical certificates. There had never been any indication, in any document from a medical professional, that the Applicant would shortly be able to return to work, or that he was making progress over his almost eight months of leave. There was no indication of what we could do to assist him to return to work or to make reasonable adjustments to assist him.

79    Western Union thus submits:

22    This evidence was not rejected by the primary judge. It informed the content of the termination letter in which Ms Pickles stated that there were "concerns" about Mr Robinson's capacity to return to work - irrespective of the reason for that capacity. The concerns so expressed could not be stripped of their context and surrounding circumstances. Ms Pickles' concerns were based on (a) (as stated in the letter) Mr Robinson had not attended work for 7 months, (b) Mr Robinson had refused to attend an independent medical examination, (c) (as stated in the letter) Mr Robinson had given no indication as to when he would return to work, (d) (as stated in her Affidavit) there had been no change in the medical certificates that had been submitted, and (e) (as stated in her Affidavit) her state of mind was that the state of affairs would continue indefinitely. Therefore, her concerns about capacity were not merely "concerns about incapacity" per se, but rather were concerns that Mr Robinson had not actually been performing his job at all (for over 7 months) and there was no indication that he could. It was plain on the evidence - accepted by the primary judge - that Ms Pickles did not think Mr Robinson would be attending to his duties and would not be doing so for the indefinite future. That was sufficient to establish that Ms Pickles made a decision because Mr Robinson could not do his job - i.e., tum up to work and perform it. It was not necessary, and artificial, to conclude (as the primary judge did) that, because she had not conducted an analysis of each of the requirements of Mr Robinson's job, Ms Pickles did not act because of the inherent requirements of the position.

23    The present case was not run under the DDA where the employer may have obligations to reasonably accommodate the disabled employee. There was no need to descend into details about particular requirements or accommodations that could be made because Mr Robinson had not attended work for over 7 months and Ms Pickles' state of mind was that he would not do so for the indefinite future. The FW Act affords protection for employees and employers in this regard through s.352 and regulation 3.01(5) of the Fair Work Regulations 2009 (FW Regs) as set out in AS[22]. Absent those protections the a priori position applies for the non-performance of work where it is based on inability or incapacity. Termination of employment in such circumstances is not because of the disability per se but rather because of the most fundamental inherent requirement of the position (namely being able to perform work).

Consideration

80    For the reasons I have stated in respect of Grounds 1 and 3 I do not accept, on the facts of this case, that the posited incapacity of Mr Robinson to return to work was relevantly a “manifestation” of Mr Robinson’s mental disability. For that reason, Western Union’s decision to terminate Mr Robinson because of its doubts (expressed by Ms Pickles) that he would return to work was not unlawful because of the operation of s 351(2)(b) of the Fair Work Act. I am satisfied that Mr Robinson’s submissions in respect of Ground 4 rely on an unsustainable threshold premise.

81    Whether Ms Pickles’ doubt that Mr Robinson might ever return to work was a sufficient reason in and of itself for Mr Robinson’s termination is irrelevant. It is uncontentious (on the basis of my disposition of Grounds 1 and 3) that Ms Pickles’ first reason justified Mr Robinson’s dismissal.

82    It is enough for the purposes of these reasons that I am satisfied that Ms Pickles’ second reason for Mr Robinson’s dismissal was not unlawful for having been taken because of a reason prohibited by s 351(1) of the Fair Work Act.

83    Accordingly, I would also uphold Ground 4.

Ground 5 and the cross-appeal

84    Appeal Ground 5 and the grounds of cross-appeal take issue with the primary judge’s assessment of compensation. As I have concluded that the primary judge erred in finding that Western Union breached s 351 of the Fair Work Act, the issues raised by Ground 5 and the cross-appeal do not fall to be determined.

85    However, lest I am mistaken in my earlier conclusions I address those propositions briefly.

86    The Appellant submits that the primary judge ought to have found that the Respondent would still have been dismissed even if the alleged contravention had not occurred on the basis that the Respondent would have been dismissed for his unreasonable failure to cooperate with the Appellant’s attempts to obtain up-to-date specialist medical advice about his capacity to return to work.

87    The Appellant submits that on any proper review of Ms Pickles’ evidence, it was Mr Robinson's failure to cooperate that was the real motivating factor behind the dismissal. It was erroneous for the primary judge to ignore this issue and to approach the assessment of compensation on the basis of an assessment as to Mr Robinson's likelihood of returning to work, rather than what may have occurred if the contravention had not taken place.

88    Mr Robinson takes issue with those submissions.

89    Mr Robinson’s cross-appeal then asserts that the primary judge erred in his award when finding at [106] that it was just as likely that he would not return to work as it was that he would return. He submits that the primary judge’s assessment of economic loss occurred in the context of:

(a)    his unchallenged evidence (which the primary judge did not acknowledge) that he joined Western Union in particular because he was looking for a company that would give him a long and stable career;

(b)    his unchallenged evidence (which the primary judge accepted at [105] of his Honour’s reasons) that his condition was improving at the time of his dismissal;

(c)    his unchallenged evidence (which the primary judge accepted at [105] of his Honour’s reasons) that he wished to return to work;

(d)    the unchallenged expert evidence (which the primary judge did not acknowledge) that there was no medical reason why he could not have returned to work; and

(e)    his unchallenged evidence (which the primary judge did not acknowledge) that he earned a substantial income despite having no history or formal qualifications in finance, each matters which made more plausible his expressed desire to return to work.

90    In those circumstances Mr Robinson submits that this Court should be satisfied that there was greater than a 50% chance that he would return to work. He submits that it was impermissible for the primary judge to have utilised his Honour’s "assessment, necessarily subjective, of the manner in which [Mr Robinson] gave his oral evidence" (at [l0l]) as a basis on which to, in effect, reach a finding of fact as to the degree of probability of Mr Robinson returning to work.

91    That finding as to credit (if that be what this was) did not logically support a positive factual finding in and of itself; "disbelief does not amount to positive evidence of the opposite of what is disbelieved": Gauci v Commissioner of Taxation [1975] HCA 54; 135 CLR 81 at 87; Steinberg v Commissioner of Taxation (1975) 134 CLR 640 at 694.

92    Mr Robinson also submits that there was no evidence and it was mere speculation on the primary judge’s part that changes to his employer’s “commission structure” would have reduced his future earnings.

93    Mr Robinson further submits that his award of general damages of $15,000.00 was manifestly inadequate in circumstances where:

(a)    his evidence, which the primary judge accepted, was that his dismissal caused him significant distress and humiliation and caused an aggravation of his psychological condition; and

(b)    unchallenged expert medical evidence indicated that his dismissal aggravated his psychological condition.

Consideration

94    The parties are agreed, and I accept, that the following principles are applicable to appellate review of damages awards:

(1)    An award of damages will be reviewed on the same basis as other discretionary decisions. An appellate court cannot properly interfere with the award merely because it would itself have awarded more or less; in order to justify appellate review, the award must be beyond the limits of what a sound discretionary judgment could reasonably adopt.

(2)    It is not however necessary to demonstrate that the award is outrageous or out of all reason.

(3)    An appellate court will interfere with an award if (inter alia) it is shown that the judge erred in a factual finding upon which the award is founded in whole or in part, or if the result is so unreasonable or plainly unjust that the appellate court will infer that an error has been made or, put differently, the amount is manifestly inadequate.

(4)    Awards of general damages are not be fixed by reference to a range gleaned from earlier cases, but other cases may provide guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards.

(5)    Unless further findings of fact are necessary, an appellate court which has set aside an award will endeavour to substitute its own award rather than returning the matter to the court below.

95    Having regard to those principles, I would reject Ground 5 of the appeal.

96    The case before the primary judge was contested on the basis that Ms Pickles had two operative reasons for dismissing Mr Robinson. I discern nothing to suggest that had, contrary to my finding on the appeal, Ms Pickles dismissed Mr Robinson because of his mental disability that a further conclusion he had been uncooperative in submitting himself to medical examinations would have justified that dismissal. Moreover, given the abhorrence Ms Pickles expressed towards the notion that she would have dismissed anyone because of their mental illness I think the counter-factual proposed is untenable.

97    I would also reject Mr Robinson’s cross-appeal.

98    In respect of his submissions that the primary judge erred in finding that he had only a 50% chance of returning to work, I identify no error in what his Honour stated at [101] with respect to the want of certainty regarding his estimates for past and future economic loss. His Honour was entitled to have identified that uncertainty attending whether Mr Robinson would have:

……in fact returned to work at Western Union and (if so) when,

and even had he returned to work, whether he would have continued to receive the same rate of remuneration in respect to:

 the past period; and

the future period of six months.

It is considered that there was no such certainty. Notwithstanding the assertions by Mr Robinson of his desire to return to his former responsibilities, some uncertainty is generated both by the history recorded in his medical certificates and some reservation as to the manner in which he gave evidence. An assessment, necessarily subjective, of the manner in which he gave his oral evidence during cross-examination was that he was a witness very alert to the giving of evidence that supported his claims. Uncertainty is also generated in respect to the remuneration he would receive if he returned to work by reason of the fact that the client base upon which he had previously earned his commissions had changed and because there had been changes within Western Union since Mr Robinson went on leave. It is difficult to assess the extent to which such changes may have impacted upon the calculations advanced on behalf of Mr Robinson, but some accommodation for those uncertainties needs to be taken into account.

99    In those premises I discern no error in the primary judge’s necessarily imprecise and evaluative conclusion at [106] as is challenged in this appeal. I reject that the primary judge was obliged to refer to every aspect of Mr Robinson’s evidence and that his failure to so manifested error, in circumstances in which his Honour clearly had reservations as to its capacity to engender belief that Mr Robinson would in fact have returned to work at Western Union.

100    Nor do I identify appealable error with respect to the primary judge’s quantification of general damages. Notwithstanding the reservations that his Honour had expressed regarding Mr Robinson’s evidence, his Honour accepted at [107] that the termination of Mr Robinson’s employment had been deeply hurtful and that he had spiralled back into his worst depression. The unchallenged medical evidence which Mr Robinson cites as having been overlooked added nothing to that.

101    The sum of $15,000.00 awarded to Mr Robinson for general damages was at the lowest end of what might have been awarded. However, I am not satisfied that this aspect of Mr Robinson’s award of damages was so unreasonable or plainly unjust as to require appellate correction.

Conclusion

102    For the reasons I have set out I am satisfied that Grounds 1, 3, and 4 of the appeal have been made out. Ground 5 must be dismissed. I am satisfied that the cross-appeal must be dismissed. I have not heard submissions as to costs, but I apprehend that a costs order may not be available to be made having regard to the terms of s 570 of the Fair Work Act. Should the Appellant wish to contend that it be entitled to costs either of the appeal or in the court below, I would grant leave to it to apply within seven days of the publication of the Court’s reasons for such an order. Otherwise I would make no order as to costs.

103    I would make the following orders:

(1)    The appeal be allowed.

(2)    The cross-appeal be dismissed.

(3)    The orders of the primary judge dated 30 November 2018 be set aside.

(4)    The Appellant have leave to apply within 7 days of the publication of the Court’s orders for any order for costs it might be advised to seek.

(5)    Unless an application is made pursuant to Order 4, there be no order as to costs.

Associate

Dated:    23 October 2019

REASONS FOR JUDGMENT

O’CALLAGHAN AND THAWLEY JJ:

104    We have read the draft reasons of Kerr J and agree with the orders proposed. For the reasons which follow, we agree that grounds 1 and 3 should be allowed with the result that the appeal should be allowed and the cross-appeal dismissed.

105    We agree with Kerr J that ground 4 would also have been made out if grounds 1 and 3 had been dismissed. We would also have allowed ground 5 if grounds 1, 3, and 4 been dismissed. If the appeal had been dismissed, we would have dismissed the cross-appeal for the reasons given by Kerr J.

THE STATUTORY PROVISIONS

106    Chapter 3 of the Fair Work Act 2009 (Cth) is entitled “Rights and responsibilities of employees, employers, organisations etc”. Part 3-1 is entitled “General protections”. Part 3-1 is divided into a number of divisions, with div 4 entitled “Industrial activities”. It is not directly relevant in this appeal, but the construction of s 346, in particular the word “because” is relevant to the construction of s 351(1) and (2)(b) which are of central relevance in the appeal. Section 346 provides:

Protection

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Note: This section is a civil remedy provision (see Part 4‑1).

107    Division 5 is entitled “Other protections”. Division 5 includes ss 351 and 352. Section 351 provides:

Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2)    However, subsection (1) does not apply to action that is:

(a)    not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b)    taken because of the inherent requirements of the particular position concerned; or

(c)     if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)     in good faith; and

(ii)     to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    Each of the following is an anti‑discrimination law:

(aa)     the Age Discrimination Act 2004;

(ab)     the Disability Discrimination Act 1992;

(ac)     the Racial Discrimination Act 1975;

(ad)     the Sex Discrimination Act 1984;

(a)     the Anti‑Discrimination Act 1977 of New South Wales;

(b)     the Equal Opportunity Act 2010 of Victoria;

(c)     the Anti‑Discrimination Act 1991 of Queensland;

(d)     the Equal Opportunity Act 1984 of Western Australia;

(e)     the Equal Opportunity Act 1984 of South Australia;

(f)     the Anti‑Discrimination Act 1998 of Tasmania;

(g)     the Discrimination Act 1991 of the Australian Capital Territory;

(h)     the Anti‑Discrimination Act of the Northern Territory.

108    Section 352 provides:

Temporary absence—illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4‑1).

109    Regulation 3.01 of the Fair Work Regulation 2009 (Cth) prescribes the relevant kinds of illness or injury for the purposes of s 352. By reg 3.01(5) an illness or injury falls outside of s 352 if the employee’s absence extends for longer than three months or the total absences of the employee, within a 12 month period, have been more than three months (whether based on a single illness or injury, or separate illnesses or injuries).

110    Division 7 of the Fair Work Act is entitled “Ancillary rules” and includes ss 360 and 361. Section 360 provides:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

111    Section 361 provides:

Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

112    There is no definition of “disability” in the Fair Work Act. Section 351(3)(ab) of the Fair Work Act refers to the Disability Discrimination Act 1992 (Cth) which defines “disability” in s 4 in the following way:

disability, in relation to a person, means:

(a)     total or partial loss of the person’s bodily or mental functions; or

(b)     total or partial loss of a part of the body; or

(c)     the presence in the body of organisms causing disease or illness; or

(d)     the presence in the body of organisms capable of causing disease or illness; or

(e)     the malfunction, malformation or disfigurement of a part of the person’s body; or

(f)     a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g)     a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h)     presently exists; or

(i)     previously existed but no longer exists; or

(j)     may exist in the future (including because of a genetic predisposition to that disability); or

(k)     is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

113    That definition does not apply to the Fair Work Act, but it is relevant context. It follows from the terms of s 351(2)(a) and (3) that s 351(1) does not apply where the relevant action was not unlawful under, amongst other things, the Disability Discrimination Act. It is clear that the intention was for s 351(1) to operate harmoniously with the various anti-discrimination laws set out in s 351(3). The phrase “physical or mental disability” and the word “disability” in the Fair Work Act should be read having regard to this context: Airservices Australia v Canadian International Airlines Ltd (1999) 202 CLR 133 at [281]-[283] (McHugh J).

114    The general operation of s 351 can be stated in the following way.

115    First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) 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 – see: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ).

116    Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [7] (French CJ and Kiefel J); [85] (Gageler J).

117    Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances. In State of Victoria (Office of Public Prosecution) v Grant (2014) 246 IR 441 at [32], Tracey and Buchanan JJ summarised the following propositions from Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-546 (Heydon J) and BHP at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J):

•    The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

•    That question is to be answered having regard to all the facts established in the proceeding.

•    The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

•    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.”

•    Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

•    If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

118    Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2). Where s 351(2)(b) is raised as an issue, the Court’s task involves determining whether the adverse action was “taken because of the inherent requirements of the particular position concerned”. If adverse action was taken because of the inherent requirements of the particular position, or for reasons which included such a reason (s 360), the adverse action is not prohibited by s 351(1), even though it would have been so prohibited absent the existence of such a reason.

119    Section 346, which was considered by the High Court in Barclay and BHP, prohibits adverse action being taken for reasons which include any of the industrial action related matters identified in paras (a) to (c) of s 346. Section 346 does not contemplate any exceptions. Section 351(1) prohibits adverse action being taken for identified reasons of discrimination. However, s 351 does contain exceptions, one of which is an exception which also revolves around the state of mind of the employer, namely s 351(2)(b).

120    Fifthly, and assuming s 351(2)(a) and (c) are not in issue, once all of the reasons for the adverse action are identified, the question or questions which remain to be answered are:

(1)    section 351(1): whether one of the operative reasons of substance for the adverse action included a prohibited reason;

(2)    if s 351(2)(b) is in issue: whether one of the operative reasons of substance for the adverse action was “the inherent requirements of the particular position concerned”.

121    The primary judge, and Katzmann J in Shizas v Commissioner of Police (2017) 268 IR 71, asked first whether s 351(1) applied and, secondly, whether s 351(2) applied. An alternative approach is to look first at s 351(2)(b), because s 351(1) cannot apply unless s 351(2)(b) does not. A third approach is to examine the state of mind of the employer and determine whether s 351 is engaged in light of both s 351(1) and s 351(2)(b). Because s 360 applies to the whole of s 351, the different approaches should yield the same result.

THE REASONS FOR TERMINATION

122    The primary judge stated that the reasons for the decision to terminate the employment of Mr Robinson were to be found in the termination letter dated 8 May 2017 and in the affidavit of Ms Pickles: J[30]. The terms of the termination letter are to be found at [10] in the reasons of Kerr J.

123    In her affidavit, Ms Pickles stated:

[79]    There was no change in the medical certificates submitted during this time regarding [Mr Robinson’s] fitness to return to work. The workcover certificates provided since 30 November 2016 had listed the same diagnosis, being major depressive disorder associated with melancholic features and significant anxiety and severe depression, while the medical certificates all listed a shorter diagnosis, being severe depression. [Mr Robinson] did not follow up on our offer to reschedule the appointment, or indicate that he was progressing towards a return to work. I believed that he had been uncommunicative.

[80]    In my experience, employees who are genuinely unwell want to communicate with their employer and seek help to return to work.

[81]    I formed the belief that [Mr Robinson] was unreasonably failing to cooperate with the Respondent’s attempts to obtain up-to-date specialist medical advice about his condition. [Mr Robinson] failed to provide the confirmation requested for three sets of potential appointments, which I took as a refusal to attend, given he also queried the need for the appointments. I believed that it was likely that he was working elsewhere.

[82]    I formed the view that, alternatively, if [Mr Robinson] was being genuine in his claims that he was unable to return to work, then that state of affairs would continue for the indefinite future, particularly given his unchanging and brief medical certificates. There had never been any indication, in any document from a medical professional, that [Mr Robinson] would shortly be able to return to work, or that he was making progress over his almost eight months of leave. There was no indication of what we could do to assist him to return to work or to make reasonable adjustments to assist him. The reference in some of the workcover certificates to contacting a rehabilitation provider (referred to in paragraphs [100] and [105] of [Mr Robinson’s] affidavit) was directed at the workers compensation insurer and this suggestion was not followed up by the Applicant or his doctor with me or Ms Chidiac.

[83]    I did not terminate [Mr Robinson’s] employment because he suffered a mental disability. I find this allegation insulting. I am very aware of the requirement to support people suffering from mental disability and am currently supporting a number of employees with this issue.

[84]    I did not believe that [Mr Robinson] was genuinely unwell and likely to improve in the foreseeable future.

124    Ms Pickles gave evidence-in-chief relevant to paragraph [84] of her affidavit to the effect that she “didn’t believe that Mr Robinson was unwell” and that she had no evidence which confirmed he was unwell and that she was trying to obtain relevant evidence. She also gave evidence, directed to the possibility that he was genuinely unwell, that she “had nothing to give [her] any indication that he was likely to improve in the foreseeable future”.

125    Having considered the termination letter and Ms Pickles’ evidence, and directing himself in the first instance only to s 351(1) and not s 351(2)(b), the primary judge summarised Ms Pickles’ reasons for terminating Mr Robinson’s employment in the following way:

(1)    Mr Robinson had unreasonably failed to attend an independent medical examination, described in the 8 May 2017 letter as “[his] unreasonable failure to cooperate with the Company’s attempts to obtain up-to-date, specialist medical advice”; and

(2)    Ms Pickles’ concern, “however it be characterised or qualified”, as to Mr Robinson’s capacity to return to work, described in the 8 May 2017 letter as “the Company’s serious concerns about [his] capacity to return to work”: J[33], [34], [36].

126    This summary was based on the primary judge’s acceptance of Ms Pickles’ evidence in relation to her reasons for terminating Mr Robinson’s employment. Ms Pickles did not know whether or not Mr Robinson was genuinely unwell. She thought it possible he was working elsewhere. Western Union had sought to have Mr Robinson examined by an independent doctor. Its attempts failed. This affected the extent of Western Union’s and Ms Pickles’ knowledge of Mr Robinson’s condition and the effect of it on his capacity to undertake the requirements of his position. Ms Pickles considered Mr Robinson’s refusal to cooperate with Western Union’s attempts to obtain specialist medical advice to be unreasonable.

127    Further, not knowing whether or not Mr Robinson was genuinely unwell, Ms Pickles considered or had concerns that Mr Robinson was either unable (if genuinely ill) or unwilling (if not genuinely ill) to perform his work: J[65].

GROUNDS 1 AND 3

128    It was common ground that the first reason for termination, as summarised by the primary judge at J[36], was not unlawful. The primary judge held that the second reason for termination was adverse action taken in contravention of s 351(1). His Honour’s reasoning in relation to Ms Pickles’ second reason for termination involved two components:

(1)    first, his Honour accepted Ms Pickles’ evidence that she “did not terminate the [appellant’s] employment because he suffered a mental disability”, an allegation she found “insulting”: at J[37], [55] and [56];

(2)    secondly, his Honour concluded that, nevertheless, Ms Pickles’ reason for termination was based on Mr Robinson’s mental disability because no distinction could be drawn between his ‘capacity’ to work and his mental disability; any lack of ‘capacity’ was but a ‘manifestation’ of his claimed mental disability and thus a part of it: at J[38] to [41].

129    The second component of his Honour’s reasoning drew upon the decision of Katzmann J in Shizas. In that case, the Assistant Commissioner of the Australian Federal Police had refused to employ Mr Shizas because he formed the view that Mr Shizas “faced an unacceptable risk of injury in the future”. The Assistant Commissioner formed that view because, as was uncontroversial, Mr Shizas suffered from ankylosing spondylitis, albeit that his condition was well controlled and that Mr Shizas was fit and otherwise healthy. The Assistant Commissioner submitted that there was no contravention of s 351. He submitted that the decision was not made because of the physical disability per se, even though that disability was the cause of the perceived risk which formed the reason for refusing employment: Shizas at [110].

130    Katzmann J rejected the proposition that a distinction could be drawn between the disability and its manifestations or effects. Having reviewed the relevant authorities, her Honour said:

[121]    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. Ankylosing spondylitis is “a chronic inflammatory rheumatic disorder”, primarily affecting the spine. Its hallmark is sacroiliitis (inflammation of the sacrum) accompanied by inflammation of the entheses (the points of union between tendon, ligament, or capsule and bone) and formation of syndesmophytes (bony growths originating inside a spinal ligament), which in the later stages of the disease lead to spinal ankylosis (or fusion). See McVeigh CM and Cairns AP, “Diagnosis and management of ankylosing spondylitis” (2006) 333 British Medical Journal 581, annexed to Dr Potter’s report.

[122]    It would be entirely artificial to say that Assistant Commissioner Connelly’s opinion was formed because of Mr Shizas’s spinal infirmities (or at least the Assistant Commissioner’s perception of them) and not because of Mr Shizas’s ankylosing spondylitis. It would be as artificial as saying that a person was refused employment not because he was a paraplegic, but because he had no control over his legs.

[123]     It is unnecessary to consider whether the relationship between ankylosing spondylitis and its manifestations is different from the relationship between a mental disability and voluntary behaviour which is in some sense “caused” by it. The statements in Grant upon which the Commissioner relies were obiter dicta. The link between the mental disability and the behaviour was not established on the evidence. As Brennan CJ said in Qantas Airways Ltd v Christie (1998) 193 CLR 280; 79 IR 120 (Qantas v Christie):

The experience of the courts of this country in applying antidiscrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles.

[124]    Of course, this is not to deny that it is well established, in a line of cases stretching back at least from Barclay, that where the same circumstance can give rise to more than one consideration in the mind of a decision-maker, the Court must have regard to the decision-maker’s “actual motives”: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; 250 IR 422 at [77] (Perram J). Thus adverse action is not prohibited where it is taken because of offensive or inappropriate behaviour, even if that behaviour occurred during protected industrial activity (Barclay; BHP Coal). Nor is adverse action prohibited where it is taken because of an unreliable attendance record, even where that unreliable attendance record is the result of taking personal leave, which is a workplace right under the FW Act (Endeavour Coal). But this is not a case of one fact that can give rise to two different considerations in the mind of a decision-maker. The considerations are the same. The distinction the Commissioner seeks to draw is between a label and the things to which the label refers. It is a distinction without a difference

[125]    Further, even if a distinction could sensibly be drawn between a disability “per se” and the limitations and vulnerabilities that make up that disability, in my opinion, as a matter of statutory construction, the word “disability” in s 351 must include both. If the prohibition in s 351(1) extended only to adverse action taken because of the protected attributes “per se”, it would be a rare situation in which the defence in s 351(2)(b) would have any work to do. It would only apply where the inherent requirements of a particular position dictated that a person could not, for example, be pregnant (not because of any vulnerability or incapacity caused by pregnancy but simply because she is pregnant, “per se”), not have any family or carer’s responsibilities (not, for example, because of any consequence that may have for the person’s availability for work, but simply because the person has family or carer’s responsibilities, “per se”), be of a particular religion (not, for example, because of any effect that may have on when the person could work or what kind of work the person could do, but simply because the person is of a particular faith, “per se”). Just about the only kind of circumstance in which the defence would operate would be a circumstance of the peculiar kind arising in Qantas v Christie where, because of the operation of an international convention and foreign domestic laws, age “per se” prohibited pilots from flying to many of the airline’s destination countries.

131    For these reasons, the (perceived) increased risk of injury arising from the physical condition of ankylosing spondylitis was to be regarded as a manifestation or part of the disability.

132    In the present case, the primary judge held that Mr Robinson’s ‘capacity’, as it was affected by his mental condition, was a ‘manifestation’ of his mental disability and that it could not be severed from it. Whilst Ms Pickles genuinely thought that she did not take into account Mr Robinson’s mental disability, she must have taken the adverse action “because” of the mental disability, because her concerns must have been “occasioned (at least in part)” by the claimed psychiatric condition and could not be severed from it: J[40], [56].

133    At J[40], his Honour stated:

[40]    The letter of termination and – in particular – the reference in that letter to “concerns about [Mr Robinson’s] capacity to return to work” – has (of course) to be understood in the factual context in which it was written. Part of that factual context, as expressed in the letter, was the past history of Mr Robinson’s responses to the requests made of him to attend medical examinations. Part of that factual context also included the content of the claims being made by Mr Robinson, namely his repeated claims that he was “unwell” and claims that he was “suffering a psychiatric condition”. In the absence of any other reason going to the “capacity” of Mr Robinson to return to work, the reference in the 8 May letter to “capacity” can be nothing other than a concern occasioned (at least in part) by the claimed “psychiatric condition”. Other than more generally expressed claims as to his feeling “unwell”, Mr Robinson was advancing no other basis upon which he would be lacking in capacity to resume his employment. His claimed “psychiatric condition” formed part of the decision-making processes of Ms Pickles when she expressed her “concerns” as to Mr Robinson’s “capacity to return to work”, and any question of Mr Robinson’s capacity could not be severed from the disability itself.

134    At J[56], his Honour stated:

[56]    The genuineness of the views held by Ms Pickles is accepted. She presented as a witness who genuinely found offensive the notion that she would take action by reference to a person’s mental disability. But the conclusion that has been reached is that – no matter how genuinely Ms Pickles believed that action should not be taken because of a disability – she nevertheless fell foul of s 351(1) by taking action motivated in part by a “manifestation” of Mr Robinson’s disability, namely a concern as to his “capacity”.

135    In our view, the primary judge erred in two ways: first, by assuming that Mr Robinson’s incapacity was a part of the disability rather than reasoning to a conclusion that it was and, secondly, in concluding that Ms Pickles could not have a concern with Mr Robinson’s capacity without that concern being “because” of Mr Robinson’s mental disability.

Was incapacity a ‘manifestation’ or part of the mental condition?

136    There was no express finding as to precisely what Mr Robinson’s mental condition was pre-termination or what the consequences of that condition were in terms of capacity. There was no detailed medical evidence addressing those issues. The medical certificates, some of which contained a stated diagnosis, were admitted into evidence on a limited basis. There was no express finding that Mr Robinson’s absence from work for seven months was in fact caused by a mental disability, although such a conclusion is probably implicit in the primary judge’s reasoning in relation to s 351(1).

137    We agree with Kerr J that it is not every consequence of a disability which is to be regarded as a ‘manifestation’ of the disability such that the consequence is to be regarded as comprising a part of the disability. The question is what the disability is, which does not necessarily equate to what the disability causes. The name given to a medical condition merely identifies the condition and not the collection of physiological or behavioural or other changes or symptoms which comprise the condition. For example, behaviours associated with a particular mental illness might be shown to be a ‘manifestation’ of the illness (harmoniously with the definition of “disability” in the Disability Discrimination Act). However, the fact that the collection of attributes which comprise the disability result in incapacity for work would not necessarily compel the conclusion that the incapacity for work was part of the disability as opposed to being a consequence of having the disability. In many contexts, for example workers’ compensation, there is a distinction between incapacity and the causes of that incapacity, namely the underlying medical condition. The question in that context would more likely be whether the disability caused incapacity, rather than whether the incapacity was part of the disability.

138    The present legislative context does not require the conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability. In our respectful view, the primary judge assumed that Mr Robinson’s incapacity for work was caused by an underlying mental condition and then reasoned that the incapacity therefore must be part of the mental condition such that Ms Pickles took action because of the mental condition, rather than identifying the disability and what it comprised and asking whether Ms Pickles took action because of the disability so characterised.

Ms Pickles’ mental process

139    As mentioned earlier, s 351(1) (and s 351(2)(b)) is concerned with the mental process in fact engaged in by the relevant individual making the decision for the employer.

140    There was no finding to the effect that Ms Pickles considered Mr Robinson’s incapacity to be a manifestation of a mental disability. Such a finding would have been inconsistent with the acceptance of Ms Pickles’ evidence that she did not terminate Mr Robinson’s employment because of his mental disability: J[56]. Whether there was a genuine illness which resulted in incapacity was a matter Ms Pickles wanted to investigate further, including by independent medical examination.

141    Ms Pickles was not sure one way or the other whether Mr Robinson was genuinely unwell and she was not sure whether his absence from work was explained by his underlying medical condition. If Mr Robinson was not genuinely unwell, then he was in fact able but unwilling to return to work and had been delaying or otherwise refusing to cooperate with reasonable and lawful requests to attend an independent medical assessment. On the other hand, if he had been genuinely unwell for seven months, then Western Union had the concern that he could not fulfil any of the requirements of his position for the reasonably foreseeable future.

142    Having accepted Ms Pickles’ evidence that she did not terminate Mr Robinson’s employment because of his mental disability, his Honour should have found that Ms Pickles’ second concern related simply to Mr Robinson’ capacity (J[36]) or willingness (J[65]) for work and not with his underlying mental disability, assuming he was genuinely ill. Ms Pickles’ second concern, summarised by the primary judge at J[36] as being with his ‘capacity’ for work, did not involve the element that the incapacity stemmed from, or was connected in any way with, a mental disability. Mr Robinson’s mental disability was not an operative reason for Ms Pickles’ decision.

143    Further, if the effect of Mr Robinson’s mental condition on his ‘capacity’ for work was a part of Mr Robinson’s mental disability because it was a ‘manifestation’ of it and Ms Pickles was shown to have thought that his incapacity was nothing more than the manifestation of his mental disability, that did not necessarily require the conclusion that Ms Pickles must have terminated Mr Robinson’s employment because of his mental disability. The two considerations could be severed or disaggregated.

144    In this regard, it is perhaps useful to recall the facts and conclusion of the majority in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150. Mr McDermott had been employed on the “weekend day shift roster”, working Fridays, Saturdays and Sundays. Between 21 December 2007 and 5 September 2010, he was absent from work on 15 occasions, totalling 29½ days, by way of various forms of “personal leave”. Except for one day, this leave was within Mr McDermott’s entitlements under a “workplace instrument” within the meaning of s 341(1)(a) of the Fair Work Act.

145    On 10 September 2010, the respondent moved Mr McDermott to the ordinary Monday to Friday roster. This was adverse action within the meaning of s 342 of the Fair Work Act. The decision to make the change was made by Warwick Young.

146    There was a second instance of adverse action, but it is sufficient for present purposes to look at the reasoning in relation to the first instance of adverse action. The primary judge concluded that “the real reason for the action taken in relation to Mr McDermott was his poor attendance, regardless of the justification” or reason for that non-attendance.

147    The primary judge recorded that Mr Young said that Mr McDermott’s absences were causing operational problems for the mine: at Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (No 2) [2013] FCCA 1518 at [74]. The primary judge accepted at [174] that his absences “would have been very inconvenient and possibly expensive to Endeavour”. The primary judge recorded at [75] the substance of Mr Young’s evidence in the following way:

[75]    Mr Young agreed that the reasons for Mr McDermott’s absences did not matter to him, rather it was the fact of those absences that mattered. He said that Mr McDermott’s record of absences going back two years was unsatisfactory and that this was part of the reason he was removed from the weekend day shift.

148    The primary judge stated at [177]:

[177]    I have concluded that Mr McDermott was moved from the weekend day shift because Endeavour did not want to have workers on that shift whose attendance was not predictable and reliable and I am of the view that it used the Absenteeism Management Process as a procedure sanctioned by the Agreement as the means to achieve this. But even though in Mr McDermott’s case the Absenteeism Management Process operated by reference to occasions of leave which he had been entitled to take, I have concluded that it was the lack of predictability in Mr McDermott’s attendance which was the reason for the decision to move him from the weekend day shift, not the fact that he had previously exercised his rights to personal/carer’s leave.

149    After setting out the primary judge’s reasons at [177], Jessup J recorded Mr McDermott’s argument on appeal in the following way at [14]:

[14]    It was the concluding passage in this extract from the primary judge’s reasons that amounted to a finding that the respondent had discharged the onus of proving that its reasons for taking adverse action against Mr McDermott did not include his exercise of the entitlement to take personal leave. At the purely factual level of Mr Young’s thinking, the appellant did not challenge this finding. If that were the end of the matter, the present appeal could not succeed: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (“Barclay”). However, it was submitted on behalf of the appellant that the absences from work by reason of which adverse action was undoubtedly taken against Mr McDermott were, in fact, the very absences which were covered by the leave to which he was entitled under the agreement. On the primary judge’s findings, it should have been held, and it should now be held, that, in taking action against Mr McDermott because of those absences, the respondent took action against him because he exercised that entitlement.

150    His Honour concluded at [34]:

[34]    On the findings of the primary judge, it was not the circumstance that Mr McDermott exercised his right to take personal leave which acted upon the mind of Mr Young when he took adverse action against Mr McDermott on 10 September 2010. Rather, it was that the respondent “did not want to have workers on [the weekend] shift whose attendance was not predictable and reliable ” It was “the lack of predictability in Mr McDermott’s attendance which was the reason … [for the adverse action], not the fact that he had previously exercised his rights to [personal] leave.” Anticipating the analytical framework later formulated by Gageler J in BHP Coal, the respondent satisfied the primary judge that the character of Mr McDermott’s absences as personal leave played no operative part in Mr Young’s decision to take adverse action against him.

151    Perram J stated:

[73]    Two arguments are raised on the appeal. First, it is submitted that the trial judge’s conclusion that Mr McDermott had been moved to the weekday shift by Mr Young because he did not always attend, rather than because he took leave to which he was entitled, was a conclusion involving error. The error was said to arise because the fact that he did not always attend was a consequence of his exercising the right to take leave. It was said that his unreliable attendance was an unavoidable incident of taking the leave to which he was entitled.

[74]    The second argument focussed only on the events of 1 April 2011. Here it was said that the trial judge had erred in fact in concluding that Mr McDermott’s attendance record had not been a factor in the decision to move him to the weekday roster.

[75]    The first argument is precluded by the High Court’s decision in CFMEU v BHP. The logic of that decision establishes that the question posed by s 340(1) concerns only the state of mind of the decision-maker: at [6], [7] and [85]. The trial judge accepted the evidence of Mr Young that his reason for moving Mr McDermott to the weekday shift was because he did not always attend when rostered. There was material before the trial judge which would have justified a different conclusion about Mr Young’s motives but that was not the finding the trial judge made.

[76]    To outflank the application of CFMEU v BHP, the CFMEU submitted that it was distinguishable because it did not involve a situation where the permissible reason was constituted by the same facts as the forbidden reason.

[77]    For myself, I would be disposed to see the force of that argument but it is precluded by CFMEU v BHP at [45] and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [121]. In the former case the employee was sacked for offensive behaviour and in the latter the employee was suspended for it. In both cases the same behaviour also constituted protected industrial action. That the conduct might be susceptible to multiple characterisations was irrelevant at the legal level. The only issue was a factual one, viz what were the actual motives of the decision-maker. I cannot distinguish that analysis from the present situation. Mr McDermott’s absences can bear two characterisations. They can be seen as the exercise of lawful rights under the Workplace Agreement. They can also be seen as an unreliable attendance record. Which of these characterisations Mr Young put upon Mr McDermott’s actions is a purely factual inquiry which the trial judge resolved. No error is shown in that conclusion.

152    In the present case, as Kerr J explains, the primary judge accepted in its entirety the testimony of Ms Pickles, who was extensively cross-examined, as to why Mr Robinson’s employment had been terminated. She swore that she did not terminate Mr Robinson’s employment because he suffered a mental disability. The primary judge expressly found that the reasons given by Ms Pickles in her 8 May 2017 letter and in her affidavit were the genuine reasons for the termination of Mr Robinson’s employment: J[30], [33], [34], [56]-[70]. His Honour expressly accepted Ms Pickles evidence given in her affidavit, and in cross-examination, and found that she gave “a truthful and accurate account of her reasons for terminating the employment of Mr Robinson”: at J[68]. That was “the totality of the operative and immediate reasons” for the termination of employment (cf Gageler J in BHP at [90]).”

153    Adopting the primary judge’s summary of Ms Pickles’ second reason for termination (J[36]), having accepted that Ms Pickles genuinely believed that action should not be taken because of a disability (J[56]), his Honour should have accepted that Ms Pickles was concerned with respect to Mr Robinson’s capacity for work and that the underlying causes of that incapacity played no role in Ms Pickles’ decision.

154    Whether or not s 351(2)(b) operated to prevent s 351(1) from applying, Ms Pickles did not terminate Mr Robinson’s employment because of his mental disability and s 351(1) was not engaged.

GROUND 4

155    Ground 4 only arises if grounds 1 and 3 are not made out. Ground 4 proceeds on the basis that (a) the effect of the mental disability on Mr Robinson’s ‘capacity’ for work is a part of his mental disability and (b) Ms Pickles’ termination because of her concern as to his ‘capacity’ was therefore necessarily “because” of Mr Robinson’s mental disability, notwithstanding her genuine denial of that proposition.

156    On these assumptions, s 351(1) could not have applied because of s 351(2)(b).

157    As noted, the primary judge dealt first with s 351(1) and next with s 351(2)(b). The primary judge recorded the employer’s case in respect of s 351(2)(b) as being that, if concern as to capacity was sufficient to fall within s 351(1), it was also sufficient to satisfy s 351(2)(b): J[45]. His Honour made two preliminary observations about the argument.

158    First, his Honour noted that “[t]he effect of such an argument was that the moment a medical certificate was provided which stated that an employee was unfit to return to work in the foreseeable future, it necessarily followed that the employee could not satisfy the “inherent requirements” of his employment – namely his capacity to undertake any work at all”. In this context, it is relevant to recall that s 352 protects employees from termination for temporary absences – namely absences less than three months consecutively or in aggregate over 12 months – and that s 351(2)(b) has no application to s 352.

159    Secondly, his Honour stated at J[46]:

[46]    If that submission prevailed, the broader the reach of s 351(2)(b), the more reduced would become the protection afforded by s 351(1). Some difficulty would have been expressed in respect to such a construction of ss 351(1) and (2)(b). A more confined operation of s 351(2)(b) may well have been more consistent with permitting s 351(1) a broader scope of operation.

160    The legislative scheme balances competing interests. One way of understanding that balance is that, except where s 351(2) applies, s 351(1) protects employees from adverse action because of, amongst other things, physical or mental disability. Section 351(2)(b) recognises that, notwithstanding s 351(1), there are situations in which it should be lawful to terminate because of the inherent requirements of the particular position including, for example, an inability to perform those inherent requirements. The question is one of determining the intended balance between competing interests as revealed by the statutory language.

161    His Honour held that “no decision had been taken by Ms Pickles as to the actual capacity that Mr Robinson could bring to his employment” or “whether he had the capacity to undertake the ‘inherent requirements’ of his position”: J[51]. His Honour then stated at J[51] and [52]:

[51]    … Although the taking of adverse action to terminate the employment of Mr Robinson included as part of the reasoning process “concerns” about his “capacity to return to work” – and hence fell within s 351(1) – no decision had been taken as to the extent of his incapacity or (indeed) whether or not he was in fact incapacitated for work. To fall within the reach of s 351(2)(b) a decision, it is considered, must be taken as to whether an employee can or cannot satisfy “the inherent requirements of the particular position”. It is only when such a decision has been taken that it can be concluded that s 351(1) “does not apply” to the action taken “because of” those inherent requirements.

[52]    The position of Ms Pickles at the stage in the decision-making process when Mr Robinson’s employment was terminated was correctly stated in her 8 May 2017 letter – the letter correctly stating that she had as at that date no more than “concerns” as to the capacity of Mr Robinson to return to work. The position at that stage in her decision-making process was only reinforced by her evidence in cross-examination that she was in no position to form a view that Mr Robinson could not satisfy the inherent requirements of the position without more information including the independent assessment that Western Union had long been seeking.

162    As noted at [123] above, Ms Pickles gave evidence, which the primary judge accepted, that if Mr Robinson:

... was being genuine in his claims that he was unable to return to work, then that state of affairs would continue for the indefinite future, particularly given his unchanging and brief medical certificates. There had never been any indication, in any document from a medical professional, that [Mr Robinson] would shortly be able to return to work, or that he was making progress over his almost eight months of leave. There was no indication of what we could do to assist him to return to work or to make reasonable adjustments to assist him.

163    Ms Pickles considered that, if Mr Robinson was being genuine, then he could not perform any of the requirements of the position for the indefinite future. That reasoning necessarily includes Ms Pickles taking the view that Mr Robinson could not perform the “inherent requirements” of the position. Performance of the central duties required of a position is an inherent requirement of that position: X v The Commonwealth (1999) 200 CLR 177, in particular at [31] (McHugh J). Ms Pickles also considered or had a concern that, if Mr Robinson was not genuinely unwell, then he was unwilling to perform any of the requirements of the position: J[65].

164    Ms Pickles’ indecision lay in not being sure about why Mr Robinson was not performing his work, not in whether he could or would perform the work. She took the view that, if it was because he was genuinely unwell, then he could not perform the work and was unlikely ever to be able to perform the work in light of the broadly unchanging nature of the medical certificates. She also took the view that, if he was not genuinely unwell, then he was simply not performing work he could perform and that position was unlikely to change.

165    Both of these positions were objectively reasonable, whether or not they were in fact correct. An honest but mistaken belief that an employee could not perform the inherent requirements of the particular position is sufficient to engage s 351(2)(b): Shizas at [151], [181]-[187] (Katzmann J). So too is an honest but mistaken belief that an employee is unwilling to perform the inherent requirements of the position.

166    It is true that Ms Pickles did not form a final view about whether or not Mr Robinson was genuinely unwell. It is also true that she could not reach a concluded view about whether he was actually able to “satisfy the inherent requirements of the position without more information including the independent assessment”. However, Ms Pickles’ action was taken because of the inherent requirements of the position. She took the view Mr Robinson was either unable or unwilling to perform the duties. Section 351(2)(b) is not confined to action taken because an employee is “unable” to carry out the inherent requirements of particular employment – cf: s15(4) of the Disability Discrimination Act as it existed when considered in X at [101].

167    If one reason for termination was, as the primary judge concluded, Mr Robinson’s incapacity for work, being a manifestation of his mental disability which could not be severed from it, then it should also have been accepted that Ms Pickles considered that Mr Robinson could not, for that reason, perform the inherent requirements of the position, with the result that one of the reasons for termination (s 360) was “because of the inherent requirements of the particular position”: s 351(2)(b). On that basis, s 351(1) could not apply because s 351(2)(b) applied.

GROUND 5

168    Ground 5 only arises if, contrary to the conclusions reached above, the appeal were otherwise dismissed. If the appeal had otherwise been dismissed, we would have allowed ground 5.

169    The Court’s power to award compensation derives from s 545(1) and (2) of the Fair Work Act, which include:

Orders that can be made by particular courts

Federal Court and Federal Circuit Court

(1)    The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

…

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

(a)    …

(b)    an order awarding compensation for loss that a person has suffered because of the contravention….

170    The primary judge approached the assessment of economic loss on the basis that there was a 50% likelihood that Mr Robinson would have returned to work. This assessment was made on the basis of a number of matters peculiar to Mr Robinson, including whether his illness would have permitted him to return to work and, if so, when.

171    The appellant says, however, that the primary judge ought to have approached the matter on the basis that Mr Robinson’s employment would have been terminated even if it had not been terminated for reasons which included an unlawful one. For the reasons which follow, that submission should be accepted.

172    Section 545(2)(b) requires identification of what loss was occasioned “because of the contravention”. It was uncontroversial on appeal that the first reason for termination was lawful. It was only the second reason for termination which was unlawful. If Ms Pickles had not entertained or acted upon the second reason for termination, she would have terminated Mr Robinson’s employment solely on the basis of the first reason.

173    The primary judge accepted the evidence in Ms Pickles’ affidavit, set out above at [123]. It is to be noted that the first reason for termination is expressed in the affidavit in a way which, if anything, suggests it was the primary reason for termination and that the second reason was an alternative.

174    As noted earlier, the primary judge accepted that Ms Pickles was genuine in her evidence that she did not terminate Mr Robinson’s employment because of his mental disability: J[56]. Ms Pickles’ first reason for termination had nothing to do with Mr Robinson’s mental disability. The affidavit evidence set out at [123] above, makes it clear that Ms Pickles’ view as to Mr Robinson’s refusal to follow reasonable directions was allied to her concern that he was not genuinely unwell and that he was working elsewhere.

175    It is difficult to see that Ms Pickles would not have terminated Mr Robinson’s employment even if she had not formed the view she did about ‘capacity’, that being the only reason which the primary judge concluded to be a reason based on mental disability.

176    The first reason for termination was a substantial reason for termination and there is no reason to doubt it was regarded as sufficient of itself for termination. It follows that Mr Robinson did not sustain any economic loss “because of the contravention”. His employment would have been terminated absent the contravention.

CROSS APPEAL

177    We agree that the cross appeal should be dismissed for the reasons given by Kerr J.

CONCLUSION

178    We agree with the orders proposed by Kerr J.

Associate:

Dated:    23 October 2019