An employee was dismissed after he refused to undertake an assessment of his competence as a train driver. He refused because he alleged he was suffering from post-traumatic stress disorder and moderately severe depression from an earlier train crash.

His employer was unaware he was suffering from such a condition as the employee had stated only that he was feeling unwell. The condition was not diagnosed until after the dismissal.

The employer alleged the employee was terminated as he was “…no longer competent to perform his duties of employment…”.

The Federal Circuit Court (FCC) held the employee’s termination was as a result of his health preventing him from undertaking his duties at that time. The employer had therefore taken adverse action against the employee who was exercising a workplace right to take reasonable care to protect his occupational health and safety at work, and that of others, by not driving the train while ill.

The FCC also found the employer had breached the FW Act (s. 351) by reason of a contravention of the Disability Discrimination Act (s. 15(2)) having unlawfully discriminated against the employee by terminating on the basis of their disability.

The employer appealed the decision to the Federal Court (FCA) that agreed with the employer the FCC had erred in finding a contravention of s. 351 of the FW Act had occurred by reason of a contravention of s. 15(2) of the Disability Discrimination Act.

Despite finding the employer had not breached s.351 (FW Act), the FCA agreed with the FCC that the employee had been dismissed for exercising a workplace right to take reasonable care to protect his health and safety at work. The employer was therefore still liable to pay compensation to the employee for breaching s. 340 of the FW Act.

[Flavel v Railpro Services Pty Ltd [2013] FCCA 1189 (29 August 2013)] [RailPro Services Pty Ltd v Flavel [2015]FCA (22 May 2015)]