Mr Robinson (‘the Applicant’) commenced employment with Western Union Solutions (‘the Respondent’) in 2013.

In late 2015, a dispute arose regarding the Applicant’s entitlement to a commission payment and the Applicant commenced on sick leave.

The Applicant provided various medical certificates over the ensuing months that advised he “suffered from a mental condition”. During the Applicant’s absence from work on sick leave, the Respondent made a number of enquiries regarding his return to work.

In January 2017, the Respondent requested the Applicant attend an Independent Medical Examination (‘IME’). The Applicant did not respond to this request.

Soon thereafter, the Respondent again requested the Applicant attend an IME. By way of response, the Applicant asked the Respondent to contact his treating doctor.

In February 2017, the Respondent again insisted on the Applicant’s attendance at an IME and advised the Applicant that he was refusing a lawful and reasonable direction and if he continued to do so, he may be terminated.

In response, the Applicant asked a series of questions, including why his treating practitioner and psychiatrist’s opinions would not suffice.

The Respondent advised the Applicant it was entitled to ask for an independent opinion and that it would advise of further dates/times for him to attend an IME.

However, the Respondent did not provide the Applicant with a list of dates/times he could attend the IME. Instead, on 8 May 2017, the Respondent wrote to the Applicant advising him that his employment was terminated. The letter stated, in part, as follows:

“…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…”

The Applicant subsequently made a General Protections claim under section 351 of the Fair Work Act 2009 (Cth). Specifically, the Applicant claimed he was terminated because he had a mental disability.

Unsurprisingly, the Respondent denied the claims and advised that his employment was terminated because of his failure to cooperate and on the basis that if the Applicant was genuine in his claims that he was unable to return to work, then this was likely to continue indefinitely. The Respondent advised that he suggestion the Applicant was terminated because he suffered a mental disability was ‘insulting’.

The Federal Court found in favour of the Applicant and determined that no distinction could be drawn between the Applicant’s “capacity to return to work” (see wording of termination letter, above) and his mental disability. The Federal Court advised that any lack of capacity of the Applicant to return to work was but a manifestation of his claimed mental disability and a manifestation could not be severed from that disability.

LESSON FOR EMPLOYERS

The Fair Work Act 2009 (Cth) prohibits an employer from taking adverse action against an employee, because of the employee’s physical or mental disability. However, this prohibition does not apply to action that is taken because the inherent requirements of the position cannot be performed. In assessing this, regard must be had to the inherent requirements of the particular employment.

Where an employee has an extended absence from work on account of illness or injury, proper processes need to be followed and relevant medical evidence needs to be gathered so that informed decisions are made.

For assistance regarding matters of termination, do not hesitate to contact Workplace Legal on (03) 9972 4950.

In October last year the Fair Work Commission inserted casual conversion clauses into a number of modern awards.

Casual conversion allows some casuals to elect to convert, subject to certain prerequisites, their employment status to full-time or part-time after a certain period of time.

Notifying casual employees of their conversion rights

Just a reminder, clients who have casual employees covered by a Modern Award should:

•  Check the applicable Modern Award to determine if a casual conversion clause was inserted;
• Give all causal employees a copy of the conversion clause within the first twelve months of their engagement; and
• For casual employees already employed, provide them with a copy of the conversion clause as soon as possible.

Please contact Naomi Boyle at WPL on 9972 4950 or nboyle@workplacelegal.com.au if you have any queries.

The Long Service Leave Act 2018 (Vic) (‘the 2018 Act’) came into effect on 1 November 2018 and replaced the Long Service Leave Act 1992 (Vic) (‘the 1992 Act’).

Summary of key changes

The major changes to long service because of the 2018 Act include:

• access to long service leave after seven years, rather than ten;
• allowing employees to take long service leave in small increments e.g. no less than one day at a time;
• most absences from work do not break continuous employment;
• unpaid leave, including parental leave (no longer than 12 months), counts towards long service leave; and
• change in the calculation of hours e.g. where an employee’s hours of work change during their employment, long service leave will be calculated at the highest average over the previous 12 months, five years or the entire period of continuous employment.

Who is covered by the 2018 Act?

Workplace Legal has received a number of queries from its clients as to whether their employees are affected by the changes.

Victorian employees will be covered by and entitled to long service leave in accordance with the 2018 Act, unless:

• they are covered by an Enterprise Agreement where the Agreement contains its own long service leave provisions; or
• their long service leave entitlement is derived from a pre-modern award.

If the 1992 Act did not apply to an employee prior to the introduction of the 2018 Act, the 2018 Act will not apply. That is, the introduction of the 2018 Act does not affect where an employee’s long service leave entitlement is derived from.

Under the NES an employee is entitled to long service leave in accordance with a pre-modern award.  A pre-modern award is an award that applied before 1 January 2010 i.e. before Modern Awards came into effect.

Please contact Naomi Boyle at WPL on 9972 4950 or nboyle@workplacelegal.com.au if you have any queries or to confirm if the changes to the Long Service Leave Act effect your employees.