In the recent case of Debus v Condor Energy Services Limited [2022] FedCFamC2G 429, an employer, Condor Energy Services (the Employer) dismissed its accountant prior to completing his probationary period due to improper conduct in the workplace including obscene language towards colleagues and physically intimidating a colleague.
The former employee, Mr Wayne Debus (the Applicant), subsequently challenged his dismissal by filing a general protections claim alleging that he was unlawfully terminated because of his autism (a proscribed reason).
The Applicant argued that due to his mental health condition, which was exacerbated by his autism disability, his former Employer took adverse action against him by terminating his employment.
The Court ultimately dismissed the Applicant’s case because it found no causal link between his autism and the dismissal, which is a central element to establish an adverse action claim.
Ultimately the Court found that in the absence of conclusive evidence, the Employer was unaware of the Applicant’s autism and at no point during his brief employment, was this disclosed to the Employer.
It was held that it was incumbent on Mr Debus to disclose his medical condition to the Employer as this could reasonably inhibit his ability to safely perform his role.
Further, the Court rejected evidence provided by the Applicant’s doctor who submitted that the Applicant’s condition should have been identified by the Employer.
This case is a timely reminder that:
- employers should provide a reason for dismissal when terminating an employee’s employment (even during probationary period);
- employers have a right to enquire about an employee’s medical history if it could impact the employee’s ability to safety perform their role; and
- employees, whilst jurisdictionally barred from filing an unfair dismissal claim if the minimum employment period has not been satisfied, could still file a general protections
For more information or to discuss how we may be able to assist you, contact our employment law team on (08) 9305 9529 or email at natalie@lotus-legal.com.au.
