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].