Sec 351 of the Fair Work Act prohibits the taking of adverse action against a person who is an employee, or prospective employee because of a prohibited reason including a person’s mental or physical disability
The word ‘disability’ in the context of s.351 should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act 1992 (Cth). ‘While physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not”; see Hodkinson v The Commonwealth (2011) 207 IR 129.
For example in Pavolvich v Atlantic Contractors Pty Ltd  FMCA 1080 the applicant was terminated because ‘he was always sick’. The Court found that the applicant had been terminated due to his sickness, which was held to be a disability. The employer was ordered to pay $16,500 to the applicant’s union as a pecuniary penalty.