Dismissed employee with psychological condition not victim of adverse action because he failed to be contactable during absence

Published 23 March 2017

Laviano v Fair Work Ombudsman [2017] FCCA 197

A recent case in the Federal Circuit Court has found that an employee of the Fair Work Ombudsman who was dismissed and suffering from depression and anxiety was not a victim of adverse action as he was dismissed for failing to communicate with his employer, rather than because he was suffering from a psychological condition.

In a recent case, Laviano v Fair Work Ombudsman [2017] FCCA, the Federal Circuit Court found that the Fair Work Ombudsman (FWO) did not take adverse action against an employee by dismissing him for not attending medical appointments.

Mr Laviano was absent from work from 24 March 2014 to 21 September 2014, 7 October 2014 to 22 December 2014, and on 24 December 2014. These absences were due primarily to a  psychological illness that Mr Laviano was suffering from.

On 6 occasions between 22 July 2014 and 27 November 2014, the FWO required Mr Laviano to attend a medical assessment so they could assist him in his return to work. Mr Laviano failed to attend 5 of these sessions. In the one session he did attend, the assessment was not completed because he was late.

On or about 14 October 2014, Mr Laviano’s psychologist told him “not to open daily mail” and not to “contact the employer”. Later, on 15 December 2014, Mr Laviano was told to avoid “attending to any work or work compensation matters.”

Mr Laviano claimed that because of these instructions, which he complied with, he did not know about the medical assessment scheduled for 27 November 2014 until 23 December 2014, when he returned to work for the day.

On 9 January 2015, the FWO terminated Mr Laviano’s employment for non-performance of duties in failing to attend the medical assessments.

Mr Laviano claimed his employment was terminated due to indirect discrimination because he failed to comply with a requirement which he was unable to comply with because of his disability. He therefore claimed he had been dismissed because of his disability and because he exercised his workplace right to take periods of personal leave due to his disability.

The FWO denied the claims, stating that Mr Laviano had been dismissed because he was unable to perform his duties.


The Court found Mr Laviano had a duty to communicate with the FWO, even when he was away from work. Although there was evidence that supported Mr Laviano’s claim that he was instructed not to communicate with his employer and that he was unable to attend some medical assessments, he was required to contact his employer, either directly or through a third party, and keep them updated as to his progress and return to work.

The Court said, “it was unreasonable, in all the circumstances, for [Mr Laviano] to simply, and in effect, ‘shut down’ all communication between the [employer] and himself given the circumstances and the history of his relationship with the [employer], and then to use his self-imposed ignorance not even as a shield but as a sword, in the present proceedings”.

Further, the Court did not accept that Mr Laviano was not aware of an email from the FWO advising him of the sixth medical assessment. Mr Laviano had forwarded a medical certificate to the FWO two days after an email dated 11 November 2014 was sent to him informing him of the assessment.

The Court also found it was unreasonable to interpret the letters from Mr Laviano’s doctors, which prevented him returning to work, to preclude him from attending medical assessments. The Court stated that:

Such an interpretation would result in the absurd outcome than an employee … can unilaterally arrogate to himself … the ability to decide whether and if so when, he can be independently medically assessed in relation to a disability which he claims is related to his workplace”.

While the Court recognised Mr Laviano suffered from a “sense of hopelessness often delusional” and had depression and/or anxiety, the Court found Mr Laviano “both knew of the assessment, and did not have a disability that precluded him from attending that assessment. … [Mr Laviano] is no more a victim of indirect discrimination than is a man who puts his hands over his ears so he cannot hear oral instructions, or a man who closes his eyes so that he cannot read written instructions.”

The case was dismissed.

Take away points for employers

This case demonstrates that an employer is permitted to contact an employee when they are absent from work as a result of an illness or injury to enquire about their progress and return to work. The employee cannot wilfully ignore correspondence from their employer even in circumstances where they are suffering from significant psychological conditions and must communicate with their employer regarding their return.

Read the full decision here

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.

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