In a recent decision*, the Federal Circuit and Family Court of Australia rejected a claim for adverse action and disability discrimination, where the claimant’s Autism diagnosis was unknown to the employer.
The Facts
The claimant commenced employment as an assistant accountant at Condor Energy Services in July 2019.
A condition of his employment required him to notify management if his fitness for work changed at any time during his employment, “to ensure your safety, the safety of your colleagues and the effective execution of the operation is not compromised”.
After 4 months his employment was terminated by a letter dated 11 November 2019 stating:
“… we have decided not to continue your employment beyond your probationary period due to on-going issues with your conduct and negative and disruptive workplace behaviour. We note that these respective issues have been discussed with you throughout your employment…”
The employer’s concerns included his persistent use of obscene language towards fellow employees, and an allegation that he had threatened to headbutt a colleague.
The claimant brought an adverse action claim against the employer, alleging that his employment was unlawfully terminated as he had been experiencing ongoing complications with his autism disability and mental health condition.
About 7 months after the employment termination he was diagnosed as suffering from “Asperger’s/ASD”, which is a subtype of Autism.
Decision
The claimant contended that his mental ill health and incapacity to effectively function in the workplace would have been noticeable in the workplace, and that, therefore, the employer had notice of his disability.
The Court dismissed the claim and held that the applicant’s disruptive work behaviour was the primary reason for the employment termination, not his autism.
The Court also observed that if, as he claimed, the claimant was already being treated for autism, he should have advised the employer before the employment commenced that he had a disability that may adversely impact upon his capacity to effectively and efficiently carry out his employment, which he failed to do.
Implications
Employers can include appropriate requirements in their employment terms for job applicants and employees to disclose known health conditions that affect their capacity to safely and effectively perform the duties of their position.
Employers can appropriately manage an employee’s disruptive behaviour according to what is known by the employer and has been disclosed to it.
Employees who have a disability that affects their capacity to safely and effectively perform the duties of their position may be expected to disclose that in a job application, or during their employment. Understandably this can be a very personal issue, and an employee who is concerned about their rights and obligations in their situation could take advice about how to approach it.
*Debus v Condor Energy Services Limited [2022] FedCFamC2G 429
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