Fair Work Commission rules on challenge to termination over psychological condition
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving an employee who alleged her termination constituted a breach of the Disability Discrimination Act 1992 (DDA).
The case revolved around whether the employer gave proper consideration to ways it might accommodate the employee’s diagnosis of post-traumatic stress disorder (PTSD).
In its defence, the employer said that while it considered the employee's situation, it found that the employee could no longer fulfill the inherent requirements of her job.
In November 2018, the employee was hired as a store manager for a supermarket. However, in November 2019, while pregnant with her third child, she suffered a family tragedy resulting in the death of her husband, according to the FWC’s published decision.
"She remained off work, including on parental leave until February 2021," the FWC ruling stated. "She was diagnosed with PTSD as a result of the tragedy."
Months after the employee returned to work, a man collapsed in the store, which triggered the employee's PTSD. She then provided a medical certificate to her employer that stated she would not be fit for work for several months, until a certificate of capacity was issued.
Given the worker's situation, the employer decided that she should undergo a Psychological Assessment of Capacity to "better understand [her] Medical Condition, work requirements and overall suitability to complete the inherent requirements of her role."
The assessment would also be used to "arrive at a decision whether any other roles or accommodations to [her] current role may be appropriate given her Medical Condition," the FWC ruling noted.
The findings indicated that it was unlikely the employee would be able to perform her pre-injury duties in future. She was then asked to provide suggestions of how she might be enabled to remain employed at the store.
While the employer acknowledged the worker's proposals, it ultimately advised her that her employment would be terminated because she could not safely perform the inherent requirements of being a store manager.
The employer’s assessment further concluded that that "there was a significant risk of aggravating or accelerating [her] Psychological Condition should [she] attempt any form of return to work."
Lastly, "there were no alternative roles or positions that [she] had the capacity to perform without compromising [her] health and safety, including or aggravating [her] Psychological Condition or sustaining new injuries/conditions," the employer noted.
The employee argued that the employer's action violated the DDA. She argued that the employer failed to make the necessary adjustments for a person with a disability and that she was "treated less favourably than a person without a disability would have been treated in materially similar circumstances."
The FWC found that the employment termination was fair and valid.
The commission found that the worker could no longer fulfill the inherent requirements of her role as a store manager.
Regarding the discrimination claim, the FWC cited Section 21 of the DDA, which states that an action is not a matter of discrimination if the aggrieved individual cannot satisfy the inherent requirements of the job "even if reasonable adjustments are made."
"Section 21B of the DDA however provides that it is not unlawful to discriminate against a person on the grounds of their disability 'if avoiding the discrimination would impose an unjustifiable hardship on the discriminator,'" the FWC ruling stated.
"I am satisfied that this exception includes hardship brought about by any requested adjustments," it added.
Ultimately, the FWC was satisfied that the employer had "carefully and fully considered," but could not accommodate adjustments to the worker's role.
