The Federal Court has overturned a finding of the Federal Circuit Court that the dismissal of a train driver was because of his physical and mental disability. It held that the employer had not breached the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act), by having breached the Disability Discrimination Act 1992 (Cth).


Mr Flavel commenced employment with RailPro Services Pty Ltd in April 2011 as a locomotive driver. Although he had almost 40 years’ experience, Mr Flavel was not familiar with the tracks and routes that RailPro operated. He was therefore employed as an assistant driver in training and was required to drive trains under supervision.

In October 2011, the train that Mr Flavel was driving under the supervision of another driver collided with another train. While no one was injured, the accident caused approximately $5 million damage. The accident was investigated and the investigation found that Mr Flavel and his supervising driver were at fault.

RailPro did not dismiss the drivers (even though it took the view   that such an incident would have warranted termination) and instead, both drivers were issued with formal warnings and required to undertake competency assessments before being allowed to continue to drive trains. In late November 2011, Mr Flavel received  a letter which advised him that he would be required to undergo a competency assessment of his driving ability.

On the day of the competency assessment, Mr Flavel boarded the train and commenced preparing to drive the train. Mr Flavel then became unwell and nervous. He set up his notes but was told by the assessor that he was not allowed to use them. Mr Flavel told the assessor that he could not drive without his notes and the assessor repeated that he could not use his notes. Mr Flavel said that he could not drive as he was unwell and unable to operate the train safely. Mr Flavel told the assessor that he would be violently ill if he was forced to drive the train. When asked if he would like to leave the train cabin, Mr Flavel said that he wished to stay on the train and observe.

Upon returning to the RailPro offices, Mr Flavel attended a meeting with three senior managers from RailPro, Mr Yates,  Mr McNaught and Mr Pastore. Mr Flavel’s employment was terminated on two grounds, being: his refusal to undergo the competency assessment without reasonable cause; and failing to achieve the required level of competency to fulfil the inherent requirements of his role.

What was said at the meeting was disputed by the parties and was a central issue in determining whether or not RailPro had dismissed Mr Flavel because he had exercised a workplace right to protect his health and safety at work, and that of others, by not driving while physically and mentally ill, or whether for another lawful reason.

RailPro contended that when Mr Flavel was asked to explain why he refused to undertake the assessment, Mr Flavel said that he was not ready to be assessed without his notes and did not mention anything about being ill as the reason for not completing the assessment.

Mr Flavel claimed that he told Mr Yates, Mr McNaught and Mr Pastore that he was not confident to carry out the assessment, as he had been feeling sick and wanted to vomit and, therefore, considered that he could not perform driver duties safely.

After Mr Flavel’s employment was terminated, RailPro became aware that he was suffering from post-traumatic stress disorder as a result of the train accident.

Mr Flavel commenced proceedings in the Federal Circuit Court, claiming that RailPro had taken adverse action against him on the basis of his disability, and his having exercised a workplace right under workplace health and safety legislation to take reasonable care to protect his health and safety at work by not operating the train when he was physically and mentally ill.

The Federal Circuit Court found in favour of Mr Flavel. It ordered RailPro to pay damages of $70,000 for economic loss, $25,000 for distress, hurt and humiliation and a $5,000 penalty to Mr Flavel. RailPro then appealed the decision to the Federal Court.

Dismissal for exercising a workplace right upheld

The Federal Court upheld the primary judge’s findings, agreeing that RailPro had failed to establish that it did not dismiss Mr Flavel because he had exercised a workplace right.

The Court found that RailPro had not provided any evidence to successfully challenge the Federal Circuit Court’s findings as to what was said at the dismissal meeting, and was unable to prove that Mr Flavel had refused to undertake the assessment without reasonable cause.

It found that the Federal Circuit Court was not in error in accepting Mr Flavel’s account of what occurred at the dismissal meeting over RailPro’s version of events. In this regard, the Court was critical of RailPro’s failure to produce notes of the meeting.

Incorrect to assume that conduct that breaches the Disability Discrimination Act will also breach the FW Act

However, the Federal Court found that RailPro had not breached the FW Act by taking adverse action against Mr Flavel on the basis of his disability.

Justice Perry highlighted the differences between the Disability Discrimination Act (which prohibits disability discrimination in employment) and the FW Act. The Court held that unlawful discrimination under the FW Act is a subset of what is prohibited under the Disability Discrimination Act. While conduct which does not contravene the Disability Discrimination Act will not contravene the FW Act, it does not follow that conduct which contravenes the FW Act will automatically contravene the Disability Discrimination Act.

Justice Perry also held the Federal Circuit Court was wrong to find that Mr Yates, Mr McNaught and Mr Pastore were aware that Mr Flavel had a disability prior to his dismissal, or that his conduct was a manifestation of his disability.

In coming to this conclusion, her Honour looked at the meaning of “disability.” She said that she agreed with previous authority that gave the term “disability” its ordinary meaning and that a disability should not be limited to an “underlying diagnosed medical or physiological or psychological condition”.

Justice Perry held that the term “disability” should also include manifestations or symptoms of a condition. However, her Honour cautioned that close consideration needs to be given to the employer’s reasons for taking the adverse action where it may not be apparent that the symptom is, in fact, a symptom of a disability, as proved to be the case with Mr Flavel.

Justice Perry said that there was no doubt that the post-traumatic stress disorder that Mr Flavel suffered as a result of the train accident was a disability under the FW Act. Therefore, because a disability can include symptoms or manifestations of the condition, the fact that Mr Flavel’s condition was not diagnosed before his dismissal did not automatically impede a finding that Mr Flavel was dismissed because of his disability.

However, Justice Perry accepted RailPro’s submission that a disability does not include ordinary human responses to particular circumstances, such as nervousness, and said that in this case, the evidence went no higher than to suggest that RailPro was aware that Mr Flavel was having an “attack of the nerves.”

While Mr Flavel gave unchallenged evidence that he felt violently ill after being told he could not read his notes, no other symptoms were communicated to RailPro, and Mr Flavel elected to sit with the driver on the train rather than return to the crew van. Furthermore, Mr Flavel made no claims in the six weeks following the accident to have suffered from any side effects. In these circumstances, Justice Perry found that it was “glaringly improbable” that the three decision makers were aware that Mr Flavel had a physical or psychological condition that resulted in him becoming violently ill when asked to drive the train.

Bottom line for employers

  • Employers should proceed with caution when taking disciplinary action against an employee who has an illness or disability. If challenged, the employer will need to be able to show satisfactory evidence to discharge the reverse onus and establish that the employee’s disability or illness formed no part of the reasons for deciding to take the action.
  •  Employers should keep contemporaneous file notes or ask an independent notetaker to attend all disciplinary and termination interviews to ensure there is an undisputed record of what has been said.
  • Employers should be mindful that not having knowledge of a disability will not necessarily prevent a finding they have taken unlawful adverse action because of the manifestations of an underlying condition.