In Vickers v The Ambulance Service of NSW ([2006] FMCA 1232 (25 August 2006)), a male registered nurse who had Type 1 Diabetes applied for the position of ambulance driver. Prior to applying for the position, he had served as a nurse at a hospital. The nurse was prohibited from proceeding to the next stage of the recruitment process – he was not allowed to train as an ambulance driver. The court ruled that the ambulance service breached s 15(1)(b) of the Disability Discrimination Act by not allowing the nurse to proceed with the next step in the recruitment process. The nurse could perform the inherent requirements of the position: he can drive, and he can treat patients in an emergency, and he had relevant work experience in rendering treatment during extreme and unpredictable hours of work. The nurse had shown that he was well able to manage his diabetes symptoms and avoid hypoglycaemia. Thus, he was well able to perform the job without risk to the health and safety of others. The applicant should have been allowed to proceed to the next step in the selection process just as any similarly qualified person without diabetes.

Disability discrimination occurs when the nature and duties of a person with a disability are changed, effectively putting the employee at a disadvantage.

In Wiggins v. Department of Defence – Navy ([2006] FMCA 800 PEG 170 of 2004 (9 June 2006)), a female Navy Officer worked as Fleet Support Officer. She took sick leave when she fell ill with depression. When she returned, she learned that without consultation or notice to her, during the pendency of her sick leave, she had been transferred to the public affairs office. Although the rate of her pay was unchanged, the transfer was effectively a demotion as the job she was transferred to did not have the same responsibilities requiring skills she had. She resigned from the Navy consequent to the transfer and filed this discrimination complaint. The transfer came within two weeks after she took sick leave for the treatment of her depression. At the very least, she should have been told of the proposed transfer, she should have been given the opportunity to return to her old job after her rehabilitation, she should have been asked to provide relevant details of her condition before she was transferred. The Court found a breach of s 15(2) of the Disability Discrimination Act. She was awarded damages for the hurt, upset and humiliation she suffered.

Disability discrimination occurs when a contractual or casual employee is no longer given work consequent to an injury or illness.

Dismissing an employee because of an illness, or because of how they reacted to a traumatic event at work, can be adverse action under the general protections in the Fair Work Act.

In Flavel v. Railpro Services Pty Ltd ([2013] FCCA 1189 (29 August 2013)), a rail company hired a locomotive driver with a heavy haulage licence. He began work in April 2011 and had no incidents or mishaps until October 2011 when he was driving under supervision. He crashed into another train. While there were no injuries in the crash, there was property damage amounting to $5 million. The rail company investigated the incident and found the driver at fault although he was not dismissed because mitigating circumstances were present. He was, instead, required to take a competency assessment, six weeks after the accident. On the day of the competency assessment, he said he felt ill. Just the same, he was required to board the train. He asked the assessor if he could take his notes and diagrams with him near the driver's seat on the train during the test but he was not allowed. As the assessor drove the train, the driver became physically ill. He was unable to take the test and was dismissed. In ruling for the locomotive driver, the Court found that the rail company did nothing to determine if the locomotive driver had adverse emotional or psychological reactions to the traumatic crash. The locomotive driver was not seen by a qualified professional to help him deal with the effects of the trauma of hitting a train where his friends and co-workers were working. The locomotive driver who was 58 years old at the time had 37 years' working experience. Thus, his inability to take a competency assessment (something he had done periodically for years) without his notes and diagrams was not something normal. Instead of being dismissed, the rail company had the duty to take reasonable care to protect the locomotive driver's health and safety by not requiring him to drive or take a test that required him to operate a locomotive while he was mentally or physically ill. The Court found that the dismissal was adverse action taken for prohibited reasons, awarded the locomotive driver compensation, and imposed a penalty. On appeal the finding of liability stood, but the compensation and the penalty were sent back to the trial judge to be decided again: RailPro Services Pty Ltd v Flavel [2015] FCA 504.