Trainee train driver with ADHD wins discrimination case, then loses it

What happened

Ms Annovazzi started with Sydney Trains as a trainee train driver on 13 October 2017, on six months’ probation. She has ADHD and Asperger’s Syndrome. On her job application she had answered “No” when asked whether she had a condition that needed adjustment during selection, or one that would affect her ability to do the job. On the health questionnaire she also ticked “No”, including to a question about psychiatric illness or nervous disorder.

Her evidence, which the trial judge accepted, was that at her pre-employment medical she told the examining doctor about both diagnoses and that she had been prescribed dexamphetamine. The doctor did not give evidence, and the medical provider’s file did not mention it.

Three weeks into the job, she texted her coordinator asking where to send her “medication stuff” so a workplace drug test would not get her into trouble. Asked whether she had told recruitment about her ADHD, she replied “no”, then: “i told the doc in the medical”. The chief health officer said she was temporarily unfit and should be sent for a fitness for duty assessment with a psychiatrist. On 6 November 2017 she was taken off the driver training course and put on light duties.

From medical review to dismissal

The fitness assessment never happened. On 9 January 2018 an HR business partner wrote that she agreed with a view from Transport Shared Services, which handled medical assessments for the transport agencies, that the matter should be treated as a “failure to declare”. Her psychiatrist then wrote that her conditions “pose no barrier to her being a train driver”.

A director in HR approved her dismissal, relying on the documents and what she was told. Sydney Trains said the reason was the director’s belief that Ms Annovazzi had been dishonest. The director did not speak to her first, and on the trial evidence nobody else asked her what she had disclosed, or to whom. She was handed a termination letter on 31 January 2018.

The legal test

Section 15(2)(c) of the Disability Discrimination Act 1992 (Cth) makes it unlawful for an employer to dismiss an employee on the ground of her disability. Under s 5(1), that means two things. First, the worker was treated less favourably than the employer would have treated a person without the disability in circumstances that are not materially different. Second, the less favourable treatment happened because of the disability.

The disability does not have to be the main reason: under s 10, it is enough that it is one of the reasons. The High Court has said the central question is always why the worker was treated as she was. The worker must prove that. Unlike a general protections claim under the Fair Work Act 2009 (Cth), there is no presumption that the employer acted for the prohibited reason.

The win at trial

Judge Manousaridis of the Federal Circuit and Family Court found the dismissal was disability discrimination. He found that an employee without her conditions would have been asked about the alleged dishonesty before being dismissed. The real decision, he found, had been made by unidentified people in Transport Shared Services, whom Sydney Trains never called. He could see no rational explanation for their decision other than her disability. He also found unlawful the requests for a note from her treating doctor, and keeping her off the course after 9 January 2018.

The appeal

The Full Court agreed that the director was not the only decision-maker, and that Ms Annovazzi had been treated differently. But it found the judge went wrong on why she was dismissed.

The dismissal came from one process involving Transport Shared Services, the HR business partner and the director, not from Transport Shared Services alone. A party’s failure to call witnesses allows only an inference that their evidence would not have helped it, not that it would have been damaging. Rejecting the employer’s explanation does not automatically prove the prohibited one. The finding about the training course went outside the case Ms Annovazzi had pleaded. The Full Court set aside every declaration and sent the case to mediation and, failing that, back to the trial judge.

What happened next

At the rehearing, Sydney Trains was allowed to produce emails and briefing notes not in evidence before. The judge said they showed the decision came from the HR business partner, a training manager and the director, not Transport Shared Services. One recorded that a training manager had spoken to her in December 2017, when she was adamant she had told the medical provider. The judge said Sydney Trains’ inquiries were deficient, because nobody asked the examining doctor directly. But the recommendation to dismiss rested on the asserted non-disclosure, not on her conditions. On 26 September 2025 the judge dismissed her application, nearly eight years after she was dismissed.

What this means for you

If you tell an employer’s doctor about a condition, it is worth also putting it on the form and keeping a copy. A spoken disclosure that never reaches the file can leave you having to prove it years later.

If you think you were dismissed because of a disability, an unfair process is not enough on its own. You need evidence that links the decision to the condition. Where you lodge the claim matters too, because the rules about who must prove the reason differ. Time limits apply, so consider getting advice early.

For employers, the lesson is to check a disputed disclosure at its source before treating it as dishonesty.