The general protections; what is a “disability”?

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 [2012] 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.