Accountant’s failure to disclose autism diagnosis pays dividends for employer’s defence of an adverse action claim

The Federal Circuit and Family Court of Australia have recently dismissed an accountant’s claims of adverse action and disability discrimination, finding that there was no causal link between the employee’s dismissal and his autism.

Facts

In Debus v Condor Energy Services Limited [2022] FedCFamC2G 429, Wayne Debus commenced probationary employment as an assistant accountant at Condor Energy Services in July 2019. After four months of service in this position, the applicant was dismissed on 11 November 2019, prior to the completion of his probation period. The reason for this premature dismissal was that the applicant had, on several occasions, behaved with hostility towards colleagues and engaged in workplace bullying. Examples of this conduct included:

• the persistent use of obscene language towards fellow employees; and
• allegations that the applicant had physically intimidated a colleague by threatening to headbutt him.

Subsequently, the applicant brought an adverse action claim in the FCFCA against the employer alleging that his employment was unlawfully terminated for a proscribed reason. The substance of this claim was that the applicant was experiencing ongoing complications with his autism disability and mental health condition, and it was for these reasons that his employment was terminated.

Decision

The Court dismissed the applicant’s claim and held that the overwhelming weight of evidence favoured the conclusion that the employee’s autism diagnosis was unbeknown to the employer at the time of dismissal, and that it was the applicant’s disruptive work behaviour that was the primary reason for him not passing his probationary period.

Duty of Disclosure

The Court found that the applicant failed to divulge his autism diagnosis to the employer prior to commencing employment. The Court held that it was incumbent on the applicant, as a condition precedent to his employment contract, that he divulged any pre-existing medical conditions that could reasonably inhibit his ability to safely perform his role.

Notwithstanding this, the applicant’s doctor explained to the Court that the applicant’s condition would have been discernible to any casual observer of the employer, allegedly that the employer possessed presumed knowledge of the applicant’s disability and that it was in reliance on this knowledge that the employer dismissed the applicant. The Court was unwilling to support this argument. They observed that it became patent under cross-examination that the applicant had been treated for autism all his life, and it was thus his responsibility to formally disclose this condition to his employer during the recruitment process.

Notifying employee of a reason for dismissal

Employers should be aware that explicit articulation of a reason for dismissal is vital when terminating an employee. In the present case, the applicant’s employer had outlined in unequivocal terms in the termination letter that it was the applicant’s antisocial workplace behaviour that gave rise to his unsuccessful completion of probation and termination of employment, as opposed to any alleged autism diagnosis.

Conclusion

Employees are required to disclose, as a condition precedent to their employment, any pre-existing medical conditions that could reasonably inhibit their ability to safely perform their role.

Employers should always articulate the lawful reason for dismissal, even during the probationary period.