The Federal Circuit Court has found that a hospital interpreter failed to prove her termination constituted adverse action because of a mental disability. In this case, the medical evidence indicated that the employee needed a stress free environment and as this could not be guaranteed in this role in this workplace the employee could not meet the inherent requirements of the position.

Implications for employers

This case highlights the importance of clear evidence from the decision maker to overcome the reverse onus of proof in adverse action claims as to the basis for the action taken. It also highlights the importance of medical evidence in these contexts, as action taken in reliance with an independent medical opinion will generally be supported as reasonable.

Background

Ms Kubat was a Turkish interpreter at Northern Health hospital facilities from April 2011 to May 2014, working two to three shifts a week. From April 2011 to July 2012, Ms Kubat repeatedly called in sick, arrived late or was absent from shifts without explanation. In July 2012, she received a verbal warning for this conduct.

In August 2012, Ms Kubat requested two months’ leave for medical reasons. The sick leave was not granted. Ms Kubat did not attend work for Northern Health at any time after 14 August 2012. Between August and November 2012, she called in sick or was absent on a number of occasions.

In November 2012, a report was provided to Northern Health which indicated Ms Kubat had been suffering from depression. A subsequent medical report confirmed Ms Kubat had a recurrent major depressive illness.

In July 2013 Ms Kubat indicated she would like to return to work. The human resources manager at Northern Health, Ms Hart, organised for the preparation of an independent medical examination. A physician recommended that Ms Kubat recommence work at Northern Health in a gradual and controlled manner, ‘in the absence of conflict and stress’ for half a day a week.

In late 2013 Ms Hart sent Ms Kubat a letter confirming that Northern Health was not able to accommodate her return to work because the company could not determine, in advance, whether staff would be exposed to stressful situations or aggressive patients. She stated that Northern Health could only agree to Ms Kubat returning to work once she had been cleared to work at least one full day a week.

In March 2014 Ms Hart sent Ms Kubat another letter confirming that her employment would be terminated unless she was able to provide evidence that she did have the capacity to perform the inherent duties of a hospital interpreter. Ms Kubat’s general practitioner provided a letter stating that she could return to work one afternoon each week. Despite this, a decision was made to terminate Ms Kubat’s employment on 2 May 2014.

Decision

Ms Kubat brought an application to the Federal Circuit Court on the basis that Northern Health took adverse action against her in breach of section 351 of the Fair Work Act 2009. She argued that the adverse action was taken against her because of her depression and took a number of forms, including:

  • belittling her, taking unreasonable disciplinary action against her and putting pressure on her to resign in August 2012;
  • refusing to allow her to return to work from July 2013; and
  • dismissing her from her position on 2 May 2014.

Judge Riley dismissed the application. He noted that while section 351 of the Act prohibits adverse action by reason of certain characteristics of an employee, it does not impose a positive obligation on an employer to accommodate an employee who is physically or mentally unable to do all ‘elements’ of their job. His Honour accepted the evidence of Northern Health employees that stressful situations for interpreters at hospitals were unpredictable, given both the hospital environment and the stressful nature of a hospital interpreter’s role, which often included translating sensitive or confronting information to patients.

Judge Riley was satisfied that Northern Health could not only discharge the reverse onus under section 361, but could also make out the defence under section 351(2)(b) of the Act, namely that the adverse action was taken due to the inherent requirements of the particular position concerned.

Ultimately Ms Kubat’s case ‘involved a number of logical errors’. Judge Riley suggested that Ms Kubat note the comments of Cameron FM in Hodgkinson v Commonwealth (2011) 248 FLR 409 that ‘while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not’.