​The Federal Magistrates Court has rejected a probationary employee’s claim that she was denied an extension for a work improvement program (WIP), and subsequently dismissed because of her disability.  The case provides helpful guidance on the meaning of the term “disability” under section 351 of the Fair Work Act 2009 (Cth) (FW Act).

Implications for employers

This case suggests that disability-based adverse action claims made by employees are unlikely to be successful unless the employee is able to demonstrate that adverse action was taken because of the disability itself.  It appears that an employer will not breach the prohibition on taking adverse action based on an employee’s disability if the action is taken due to the consequences of the disability (such as absence from work).



The facts of the case can be summarised as follows:

  • The employee was employed by the Child Support Agency subject to a six month probationary period.  During the probationary period, the employee encountered gynaecological problems and back problems.
  • The employee was prescribed some time off work in order to have surgery and was placed on a gradual “back to work” program, which initially involved a reduction in her standard working hours. 
  • The employee was counselled about inappropriate workplace behaviour (some lateness and inappropriate remarks) and placed on a WIP because she had failed to meet certain productivity targets. 
  • The employer refused to extend the WIP to enable the employee to demonstrate improvement.  CSA dismissed the employee during her probation period for failure to meet performance targets and the inappropriate workplace behaviour.

Employee’s claim

Under the FW Act, an employer is prohibited from taking adverse action (for example, terminating an employee or subjecting the employee to detriment) for a number of reasons.  Those reasons include (among others) that the employee has exercised a workplace right (for instance, making a complaint) or has a disability.  It is also unlawful to dismiss an employee on the grounds that he or she is temporarily absent from work.

The employee submitted that the employer had breached these provisions by:

  • taking adverse action because she sought to exercise a workplace right (the employer’s internal review mechanisms), contrary to sections 340-342 of the FW Act;
  • taking adverse action because of a disability (she had taken time off work for surgery) by not extending her WIP, which constituted injury to her in her employment, alteration of her position to her detriment and discriminating between her and other employees;
  • discriminating against her on the basis of physical or mental disability contrary to section 351 of the FW Act, and sections 5 and 6 of the Disability Discrimination Act 1992.  The employee alleged that her medical difficulties and absences were not taken into consideration by the employer when assessing her performance; and
  • dismissing her on the grounds of temporary illness or injury, contrary to section 352 of the FW Act.

The employee sought reinstatement, compensation and imposition of a pecuniary penalty.

The decision

Federal Magistrate Cameron accepted the employer’s submissions that the decision to dismiss the employee was due to poor performance, rather than because of the employee’s temporary illness, injury, absence or disability.  The application was dismissed on the basis that:

  • the employee’s submissions in response to a letter from the CSA, which sought a response from the employee regarding the proposed termination, did not constitute an inquiry or complaint for the purposes of the FW Act protection; 
  • the term “disability” has a different meaning in the FW Act to that under the DD Act. Under the FW Act, the word “disability” “should be understood to refer to a particular physical or mental weakness or incapacity”.  However, contrary to what the employee submitted, the “practical consequences such as absence from work” are not an aspect of a disability; 
  • there was an alteration of the employee’s position to her prejudice, because she was entitled to be considered for an extension of a WIP, and this was denied.  However, the employee failed to properly establish that this was because of her disability;
  • there had been no discrimination between the employee and other employees who were on a WIP.  There was no evidence of deliberate less favourable treatment.  The fact that an “employee’s probation has an outcome which is different from the outcomes enjoyed by other probationers, is insufficient to prove discrimination”; and
  • finally, the DD Act claim could not succeed as the employee had not first undertaken the process of application to the Human Rights and Equal Opportunity Commission required by the DD Act.

Hodkinson v The Commonwealth [2011] FMCA 171