Kirryn West James and Vanessa Yol

A recent case before the Federal Circuit and Family Court of Australia (the "FCFCA") dismissed an employee's adverse action and discrimination claims and upheld the employee's dismissal because the employee had failed to disclose to his employer his mental disability (read the case here).

Facts

The assistant accountant ("Employee") commenced a new role at Condor Energy Services (the "Employer"). Prior to the Employee commencing employment he signed an employment contract which contained a number of clauses relating to fitness for work and disclosure of information. By signing the contract the Employee agreed that he had disclosed all information (including medical information) that would be relevant to his ability to safely and competently perform the role.

The Employee signed the contract and although he was aware he had a significant history of mental health issues, including autism, he did not disclose this information to his Employer.

During his probationary period, the Employer gave the Employee a number of informal and formal warnings about his inappropriate behaviour in the workplace. This behaviour included yelling at colleagues, sending inappropriate text messages which contained obscene language and insults, and threatening to headbutt someone. Halfway through the probationary period the Employer terminated the Employee's employment due to his ongoing conduct issues.

The Employee filed a claim asserting that the Employer had terminated his employment due to his disability, which amounted to discrimination. Central to this claim was establishing that the Employer knew of the Employee's disability. Although the Employee had not notified the Employer of his disability, he claimed that it would have been noticeable to Condor's employees and he had sent a colleague a text message in which he referred to himself as an "autistic freak of nature". The Employee asserted that this was formal notification of his mental disability.

The Employee sought a range of remedies including reinstatement, promised increased annual salary, back pay and compensation.

Judgment

The FCFCA had to decide the reason for the Employee's dismissal, and whether the dismissal was on the basis of the Employee's disability. The FCFCA found that the Employer had not engaged in adverse action or discrimination and in considering the Employee's claims found that:

• the Employer did not know or suspect that the Employee was suffering from any mental disability and the Employee's text message referring to himself as an "autistic freak of nature" did not amount to formal notice of a disability;
• the Employee should have formally advised his Employer about his autism diagnosis prior to starting employment, particularly since he had been treated for autism throughout his adult life. To withhold this information was found to be unfair to the Employer; and
• in failing to notify the Employer of his disability, the Employee breached an implied term of his employment contract, as well as the contractual obligations in his employment contract.

The FCFCA accepted that there were many occasions where the Employee had exhibited unacceptable behaviour in the workplace. No one at the Employer knew of the Employee's mental disability and his employment was not terminated because he suffered from any disability.

Further, even if the Employee's claims had been successful the FCFCA accepted that no loss would have been suffered, and no compensation awarded, as the Employee always experienced regular interpersonal conflicts in the workplace which resulted in short term employment.

Key takeaways

The FCFCA's comments about the Employee's duty to disclose his mental disability reinforce the right of employers to require employees to disclose any disability (physical or mental) which impacts their ability to safety and competently perform their role. While this could be included in a written employment contract, where this is not the case employers can rely on the implied duty of disclosure.

from https://www.mondaq.com/australia/health--safety/1279456/autism-and-mental-disability-in-the-workplace--an-employees-duty-to-disclose or https://www.peopleculture.com.au/autism-and-mental-disability-in-the-workplace-an-employees-duty-to-disclose/