Adverse action: Kubat v Northern Health [2015] FCCA 3050

 

The Federal Circuit Court of Australia has found that a Turkish interpreter working in a hospital and suffering from depression was not subject to unlawful adverse action because of her mental disability.

Ms Kubat commenced part time employment as a Turkish interpreter with Northern Health on 18 April 2011. Between January and August 2012 Ms Kubat was repeatedly absent and late for work and missed several interpreting appointments. Northern Health issued Ms Kubat with a first warning for her behaviour.

Ms Kubat then produced a medical certificate stating that she was required to take 2 months’ medical leave to travel to Turkey for the second anniversary of her father’s death. Northern Health questioned Ms Kubat about the medical certificate but permitted her to take two month’s personal leave. On the date that Ms Kubat was expected to return to work, she initiated a WorkCover claim asserting that she had been suffering depression and that she was unfit for work.

In July 2013 Ms Kubat advised Northern Heath that she wished to return to work. Northern Health organised for Ms Kubat to attend an independent medical examination to determine her fitness to undertake the inherent duties of her position. The independent medical examiner stated that Ms Kubat was not fit to carry out her normal duties but that she could return to work one half day per week in a conflict and stress free environment. She could then gradually increase her hours to her normal 3 days per week.

Northern Health requested a supplementary report from the doctor as it believed that it would be inevitable that Ms Kubat would be required to work in stressful and problematic situations whilst working at a hospital. The doctor confirmed his advice that Ms Kubat could only work half a day per week.

Northern Heath refused to allow Ms Kubat to return to work as it was not able to guarantee an absence of undue conflict and stress and it feared that allowing her to return to work would exacerbate her disability and would risk the safety of patients who she provided interpreting services to.

On 2 May 2014 Northern Health terminated Ms Kubat’s employment on the basis that she could not perform the inherent requirements of her job at that time or in the foreseeable future.

Ms Kubat filed an application in the Federal Circuit Court alleging that Northern Health had taken adverse action against her by:

  1. Belittling her by questioning the validity of her medical certificate;
  2. Issuing a warning to her when she was suffering from depression;
  3. Pressuring her to resign;
  4. Not allowing her to return to work;
  5. Terminating her employment.

Decision

The Court dismissed each of Ms Kubat’s claims, finding that Northern Health was not aware of her depression until she filed a WorkCover claim in November 2012. Judge Riley held that once Northern Health was made aware that she was suffering from depression, it could not allow Ms Kubat to return to work and risk exacerbating her condition.

It was found that Northern Health clearly terminated Ms Kubat’s employment as she could not fulfil the inherent requirements of her role, not because she was suffering from depression.

 

Read the full decision here

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate. 

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