Dismissed because of a disability? Four cases on how the law works

What the law protects

Under s 351 of the Fair Work Act 2009 (Cth), an employer must not take adverse action against an employee because of a protected attribute, and physical or mental disability is one of them. Adverse action (s 342) includes dismissing you, injuring you in your employment, changing your position to your detriment, or discriminating against you. A claim of this kind is called a general protections claim.

Disability is read broadly. In Stephens v Australian Postal Corporation [2011] FMCA 448 the court said that, unless an exception applies, s 351 expects an employer to accept and accommodate how a disability shows itself and its effects on the employee's capacity to work, not only the diagnosed condition. There are exceptions in s 351(2), for example where the action is not unlawful under the anti-discrimination law that applies, or is taken because of the inherent requirements of the job.

The key feature is the reverse onus in s 361. Once you show that you have a disability and that adverse action was taken, the court presumes the action was taken because of it. The employer then has to prove that the disability was not one of its reasons. Courts usually decide this on the evidence of the person who actually made the decision, tested against everything else (Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32).

Two workers who won

Mr Stephens was a part-time driver and sorter for Australia Post. He hurt his back at work in December 2009, claimed workers compensation, and was summarily dismissed on 7 January 2010. The letter gave two reasons: a missed customer pick-up and an incident of swearing. Federal Magistrate Smith found that Mr Stephens had an excellent excuse for the missed pick-up and that the managers knew it. Australia Post had not proved that the real reasons were dissociated from his back injury and his compensation claim, so it had breached ss 340(1) and 351(1). Reinstatement was ordered, and in a later decision ([2011] FMCA 999) Australia Post was ordered to pay an aggregated penalty of $25,000, payable to Mr Stephens.

Mr Silver, aged 66, was an accountant and office manager at a small accounting practice. In 2010 he was diagnosed with a serious heart condition, had a triple bypass operation, and was in and out of hospital until May. In July 2010, soon after he told the firm he was fit to return, he was let go. The employer said it was the firm's financial circumstances, but the termination letter mentioned "health related issues". In Silver v Rogers & Rogers [2012] FMCA 674 the court rejected the claim based on age but found that his heart condition was an operative reason for the dismissal. It ordered $15,000 compensation ($2,000 of it for distress), $5,417.25 for unpaid notice, interest, and penalties of $2,500 in all.

Two workers who lost

Mr Cugura was a senior community safety officer with Frankston City Council. After cancer surgery he said he could not wear a seatbelt, and the council spent months on risk assessments and possible vehicle changes before moving him to office duties. He then sent emails to Victoria Police, and after an investigation he was dismissed for gross misconduct. In Cugura v Frankston City Council [2012] FMCA 340 the court accepted that he had a physical disability. But the decision-maker's evidence that her decision "related only to the matter of him having sent the email" was not challenged and was accepted, so the council discharged the reverse onus and the claim was dismissed.

Ms Evangeline worked for the Department of Human Services. She complained that a colleague had sexually harassed her, and the department's investigation decided that the colleague had not breached the code of conduct. She claimed that the investigation was biased and that she was treated adversely because of her sex and her disability. In Evangeline v Department of Human Services [2013] FCCA 807 Judge Coker found that the department's processes were professional and unbiased and that there was not "a skerrick of evidence" that her sex or health had influenced them. The application was dismissed.

What these cases show

The reverse onus is a real advantage, but it is not automatic success. Workers won where the employer's stated reason did not hold up, or where the paperwork itself pointed to health. Employers won where the decision-maker gave clear, credible evidence of a separate reason, such as conduct the worker admitted, and that evidence went unchallenged.

If you have a disability, keep records of what your employer knew about your condition, any requests for adjustments, and what was said when the action was taken. A disability claim may also be made under the Disability Discrimination Act 1992 (Cth) or, in WA, the Equal Opportunity Act 1984 (WA), but you generally have to choose one route.

Time limits

If you have been dismissed, you have 21 days from the day the dismissal took effect to apply to the Fair Work Commission (s 366). Since 7 July 2026 it is enough to allege that you were dismissed; the Commission does not have to decide that question before it holds a conference. A claim about other adverse action, such as being demoted, has a longer time limit, but it is still worth getting advice early.