The Federal Magistrates’ Court has held that an employer took adverse action and discriminated against an employee because of his workers’ compensation claim and disability.

The employee was on a fixed term contract and was absent from work on several occasions because of a work-related injury.  The employee made a compensation claim and returned to work on suitable duties.  Shortly after the employee’s return, his contract was terminated because of alleged misconduct. 

The Court first held that the employee’s workers’ compensation rights were “workplace rights” which were capable of protection under the Fair Work Act’s adverse action laws.

The Court then said that on the evidence before it it was unable to determine the “true” reasons for the employee’s termination.  However, it found that:

  • the employee’s compensation claim and his disability had either consciously or subconsciously influenced the employer’s decision to dismiss the employee; and
  • the employer had failed to establish that the real reasons for the employee’s dismissal were disassociated from the circumstances of his workers’ compensation rights.

Therefore, the employer had failed to overcome the statutory presumption that it had dismissed the employee for a prohibited reason.  In relation to the meaning of “disability”, the Court, diverging from the approach taken in other cases, concluded that a “disability” includes the practical consequences which are inherent attributes of the condition, as opposed to a narrower view that limits “disability” to the more direct features of the condition itself. 

The Court ordered reinstatement even though the employee’s contract was due to expire, finding it was likely the contract would have been extended.

Stephens v Australia Postal Corporation [2011] FMCA 448