A Victorian Office of Public Prosecutions solicitor was unfairly sacked for "misconduct" after his bouts of depression affected his work performance, attendance and conduct, the Federal Circuit Court has ruled.
Judge Philip Burchardt found the employer breached s351 of the Fair Work Act in taking adverse action against the worker because of his physical or mental disability.
He said the worker's mental ill health was "clearly" part of the reason he was dismissed.
The Court heard the worker broke his leg in September 2010, before suffering deep vein thrombosis, which required him to have blood tests three times a week.
The employer raised concerns about his high absence rate - which continued throughout 2011 - as it was causing a decline in his performance.
By early 2012, the worker was "struggling" due to depression, and told the employer he had a "long-term anxiety condition complicated by self-medication with alcohol".
He was stood down due to his inability to perform work, and required to provide a "detailed medical report" on his condition.
But the worker's superior, the Solicitor for Public Prosecutions (SPP), decided the report that was subsequently provided by the worker's doctor was inadequate, and suggested the worker be assessed by an independent medical specialist.
The worker refused to comply after receiving advice from his union. He was then dismissed in August 2012 for misconduct that occurred during the time he was ill.
The alleged misconduct included disclosure of confidential information, poor performance and two incidents where the worker disobeyed a direction to go to court to instruct a barrister.
The worker claimed the employer took adverse action against him in dismissing him due to his ill health, and argued the misconduct allegations "had no reasonable basis in fact".
The employer denied dismissing him for anything other than misconduct, and the SPP claimed there was no medical explanation for the worker's misconduct.
Judge Burchardt found the employer sacked the worker because he "misconducted himself" as a result of his ill health.
He said it "must have been entirely clear to a man as intelligent as [the SPP]" that the worker's conduct "was completely interwoven with his medical condition".
"I do not accept [the SPP's] evidence that his state of mind at the time of his decision to terminate the [worker's] employment wholly excluded [the worker's] ill health," he said.
"I think it was quite clear that it was part of the reason he was dismissed."
The remedy will be determined later.
Grant v State of Victoria (The Office of Public Prosecutions) [2014] FCCA 17 (23 January 2014)
