Western Union Business Solutions (Australia) Pty Ltd v Robinson

Western Union Business Solutions (Australia) Pty Ltd appealed a decision by the Fair Work Commission that it had taken adverse action against Mr Robinson, an employee, because of his mental disability. The Fair Work Commission had also dismissed Western Union’s cross-appeal against an order for Mr Robinson to be paid compensation. The Fair Work Commission found that Western Union had terminated Mr Robinson’s employment because of his disability, contrary to section 351 of the Fair Work Act 2009 (Cth). The Fair Work Commission concluded that Western Union had terminated Mr Robinson's employment because of his disability, specifically because of his unreasonable failure to attend an independent medical examination and because of concerns as to his capacity to return to work. The Fair Work Commission further found that these reasons were because of Mr Robinson’s mental disability. Western Union argued that the Fair Work Commission erred in finding that its decision to terminate Mr Robinson’s employment was because of his mental disability, and that the Fair Work Commission erred in ordering Western Union to pay compensation to Mr Robinson. The Full Bench of the Federal Circuit Court held that the Fair Work Commission erred in finding that Western Union’s decision to terminate Mr Robinson’s employment was because of his mental disability. The decision maker did not perceive Mr Robinson’s failure to attend an independent medical examination to be a manifestation of his disability, and the decision maker did not take adverse action because of his disability. Therefore, Western Union did not take adverse action against Mr Robinson because of his mental disability. The Full Bench of the Federal Circuit Court held that the Fair Work Commission erred in ordering Western Union to pay compensation to Mr Robinson. The Full Bench of the Federal Circuit Court held that Mr Robinson did not sustain any economic loss as a result of Western Union’s decision to terminate his employment.

The appeal was allowed and the cross-appeal was dismissed. The orders of the primary judge were set aside. The Appellant had leave to apply for costs within seven days of the publication of the Court’s orders. Unless an application was made pursuant to Order 4, there would be no order as to costs.