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  • A recent decision of the Federal Court held that the protection against taking adverse action because of a disability extends to the manifestations of that disability.
  • The appeal of the decision, which is to be heard this month, should assist in clarifying the fine line between a decision made because of a protected attribute, as opposed to a decision made because of the manifestation of that protected attribute.
  • Employers will need to exercise caution when making any decisions adversely affecting employees because of a consequence of a protected right or attribute.

The ‘general protections’ provisions of the Fair Work Act 2009 (Cth) (‘FW Act’) are commonly utilised by employees to challenge employer decisions that adversely impact the employee. The attraction of the jurisdiction for applicants includes a ‘reverse onus of proof’ that requires the respondent to positively establish that the alleged unlawful reason was not an operative reason for the action. Further, an unlawful reason also need only be one of the reasons for the adverse action, not the sole or dominant reason.

In practice, however, few applications succeed. The cases have evolved such that courts are focussed on the ‘actual’ reason of the decision maker(s). Therefore, to successfully defend an application, an employer must call the decision maker(s) who can attest to their actual reasoning – devoid of any unlawful reasons. This evidence is then extensively tested – typically with extensive cross examination, competing witness evidence or contradictory documents. Where this evidence is accepted, the employee’s application must fail.

Focussing on the actual reason of the employer has led the Courts to draw a fine line between a decision made because of a protected attribute, as opposed to a decision made because of the consequence of that protected attribute. By way of example, in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, a Full Court of the Federal Court held that Endeavour Coal’s decision to reassign a mineworker to a less lucrative roster because of his unpredictable and unreliable attendance was not a decision made for unlawful reasons, notwithstanding that the mineworker’s unreliable attendance was (at least arguably) the consequence of his exercising his statutory right to take personal leave. Similarly, an employer who dismissed an employee when the employee took personal leave was found not to have taken adverse action because the Court accepted that the decision maker genuinely, but mistakenly, thought the employee had dishonestly taken the leave (Construction, Forestry, Mining and Energy Union v Anglo Coal Pty Ltd [2015] FCAFC 157).

Robinson v Western Union Business Solutions

The recent Federal Court decision of Robinson v Western Union Business Solutions (Australia) Pty Limited [2018] FCA 1913, highlights that the distinction between a decision made because of a protected attribute or reasons, and the effect of the reason or attribute, is a fine and often precarious one.

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