Teacher dismissed after a wrist injury loses disability claim: Fair Work "inherent requirements" test does not import reasonable adjustments

In Lill v Westbourne Grammar School [2026] FedCFamC2G 2120, the Federal Circuit and Family Court of Australia (Division 2) (Judge Blake) dismissed a general protections claim by a senior school teacher whose employment ended after about 28 years. She injured her wrist at work in 2021, worked with adjusted duties for more than three and a half years, and was dismissed in December 2024. The Court accepted she had a physical disability, but found the school dismissed her because she could not meet the inherent requirements of her position, not because of the disability. The Court also ruled that the "inherent requirements" exception in the Fair Work Act 2009 (Cth) does not carry over the "reasonable adjustments" test in the Disability Discrimination Act 1992 (Cth). All paragraph references below are to the judgment.

Why it matters: A worker who says they were dismissed because of a disability can sue under the Fair Work Act or under discrimination law. On this Court's reading, an employer relying on the Fair Work Act exception does not have to show it considered reasonable adjustments. The judge acknowledged the inconsistency between the two Acts and said it is perhaps a matter warranting legislative review ([99]).

At a glance

• Court and level: Federal Circuit and Family Court of Australia (Division 2), General Federal Law (single judge, first instance)
• Area of law: Employment law; general protections (adverse action) under the Fair Work Act 2009 (Cth)
• Decision type: Final judgment after a three-day trial (3–5 June 2026)
• Outcome: Application dismissed ([123])
• Burden: The employer carried the "reverse onus" of proving its reasons ([115])
• Costs: Not dealt with in the published reasons

🧩 Facts and Issues

Background

• The teacher began at the school in 1996. At the relevant time she was a full-time senior school teacher of Year 11 and 12 classes, including Legal Studies ([4], [7]).
• In March 2021 she injured her left wrist at school. She is left-handed. The wrist was strained again in 2021 and 2023 ([9], [13]).
• The school agreed to adjustments: no yard duty, no extra classes, no assemblies and extra time to mark student work. These stayed in place for about three years and seven months ([10]).
• In September 2024 the school asked her doctor about her capacity to perform the inherent requirements of her role ([13]–[14]). The doctor said she could not fully and safely resume her usual duties, mainly because heavy wrist use such as marking and writing was restricted. She could do yard duty, extra classes and assemblies, and no prognosis was given ([15]).
• In late October 2024 the school told her its preliminary view was that her employment should end ([17]). Her union asked the school to continue the adjustments. The school's lawyers replied that it could not, citing resourcing, operational needs and student education ([19]–[20]).
• The school terminated her employment on 3 December 2024 ([23]).

How the case got here

• The teacher sued the school under ss 340 and 351 of the Fair Work Act, and sued the principal under s 550 as a person "involved" in the alleged contraventions ([1], [38]).

What each side argued

• The teacher said she was dismissed because of her physical disability (s 351), or alternatively because of her union's request for continued adjustments (s 340) ([24], [118]).
• She argued "inherent requirements" in s 351(2)(b) should be read as in the Disability Discrimination Act, so the question was whether she could do the job with reasonable adjustments such as extra marking time ([88]).
• The school argued she had not proved a disability, that her inability to meet deadlines was not a "manifestation" of any disability, and that it acted because of the inherent requirements of her position ([39], [78]).

The issues

• Did the teacher prove she had a physical disability?
• What were the school's real reasons for dismissing her?
• Does the s 351(2)(b) exception require an employer to consider reasonable adjustments?
• Was the dismissal because of the union's inquiry?

⚖️ Applicable Law – Legislation, Rules and Principles

• Fair Work Act 2009 (Cth) s 351(1): an employer must not take "adverse action", including dismissal, against an employee because of a "physical or mental disability" ([24]–[25]).
• Fair Work Act 2009 (Cth) s 351(2)(b): s 351(1) does not apply to action "taken because of the inherent requirements of the particular position concerned". The employer must prove this ([26]).
• Fair Work Act 2009 (Cth) ss 340–341: an employer must not take adverse action because an employee exercised a "workplace right", which includes making a complaint or inquiry about their employment ([30]–[31]).
• Fair Work Act 2009 (Cth) ss 360–361: action is taken for a reason if the reasons include it, and once the elements are proved the employer must prove it did not act for the alleged reason ([33]–[34]).
• Disability Discrimination Act 1992 (Cth) s 21A: the DDA's inherent requirements exception applies only if the person could not do the work even with reasonable adjustments, which in turn depends on "unjustifiable hardship" (s 11) ([89], [92]–[93]).
• "Disability" is not defined in the Fair Work Act. It is read harmoniously with the DDA definition and includes the total or partial loss of a bodily function ([27]–[28]).
• The question is the decision-maker's actual reasons, decided on the balance of probabilities. Fairness of the dismissal is not the question ([35]–[36]).

📌 Authorities Relied On

• Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547: the meaning of "disability", and that not every consequence of a disability is a manifestation of it ([27], [79]).
• Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347: an applicant must prove the elements before the reverse onus applies ([34]).
• Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500: the inquiry is into the decision-maker's actual reasons ([35]).
• Khiani v Australian Bureau of Statistics [2011] FCAFC 109: an employer need not prove its reasons were fair ([36]).
• Qantas Airways Ltd v Christie (1998) 193 CLR 280 and X v Commonwealth (1999) 200 CLR 177: the meaning of "inherent requirements", assessed practically and including safety ([84]–[87], [114]).
• Shizas v Commissioner of Police [2017] FCA 61: an employer's honest belief about inherent requirements ([117]).

🧠 Analysis

Issue

Was the teacher dismissed because of her disability, or because of the inherent requirements of her position? And must an employer relying on the Fair Work Act exception show it considered reasonable adjustments?

Rule

Section 351(1) prohibits dismissal because of a disability, but s 351(2)(b) excludes action taken because of the inherent requirements of the particular position. The employer must prove its real reasons, and the Court looks into the decision-maker's mental process ([26], [35], [83]).

Application

Disability means loss of function, not a diagnosis

The school stressed that the fracture had healed ([44]). The Court held that s 351(1) does not require the disability to still exist when the action is taken, and the focus is on loss of function, not an identifiable medical condition ([44]–[45]). Her pleading put the school on notice, and the medical report showed a loss of function in her wrist ([52]–[53]).

The real reasons were the marking deadline and safety

The principal made the decision ([54]). The judge treated an exchange in his cross-examination as important evidence: it indicated that, but for her inability to mark and return assessments within the required timeframe, she would have remained employed ([64]–[66]). Her ability to mark was not disputed; the issue was the two-week timeframe ([65]). The judge found he genuinely believed she could not safely perform the inherent requirements of her position, and found both decision-makers credible ([70], [77]).

Other concerns were in mind but not operative

Concerns about physical tasks such as CPR, and passing doubts about her willingness to return to full duties, crossed the decision-makers' minds. The Court found neither was a substantial and operative reason, partly because they were not raised with her before the dismissal ([67]–[68], [74]).

Not a manifestation of the disability

The Court accepted that not every consequence of a disability is a manifestation of it ([79]). The evidence did not show her inability to perform all duties was a manifestation of her disability, and even if it were, the outcome would not change, because the principal acted on the inherent requirements, not the disability ([82]–[83]).

"Inherent requirements" does not bring in reasonable adjustments

The text of s 351(2)(b) says nothing about reasonable adjustments ([91]). Reading in the DDA concept would also import "unjustifiable hardship", placing "an extraordinary set of obligations on the few short words" in the provision ([92]–[94]). The legislature was unlikely to impose such obligations without saying so, particularly for a civil penalty provision ([95]). The Full Federal Court in Western Union had also "carefully avoided" saying the two Acts' terms mean the same thing ([96]). Separately, the argument had not been pleaded, which was an independent reason to reject it ([98]).

Two-week marking and safe performance were inherent requirements

The school's assessment policy required marking and feedback within two weeks, the teacher accepted marking deadlines were fundamental, and she taught VCE students ([104]–[105]). Being able to work safely was also an inherent requirement ([106]). On the medical evidence she could not meet either ([113]–[114]). The school's letters spoke of "genuine and reasonable requirements" rather than "inherent requirements", but both sides used that language and understood the substance ([110]–[111]).

The union's inquiry was protected, but not the reason

The union's request was made in good faith and for a proper purpose, so she had exercised a workplace right ([119]–[120]). But she was not dismissed because of it ([120]).

Conclusion

The school discharged the reverse onus: it dismissed the teacher because of the inherent requirements of her position, not because of her disability or the union's inquiry ([115]–[116], [120]). Even if the judge was wrong about what the inherent requirements were, the principal honestly believed she could not meet them ([117]). With no contravention by the school, the claim against the principal also failed ([122]).

🏛️ Outcome, Orders and Costs

• The application filed 18 February 2025 was dismissed ([123]).
• The s 351, s 340 and s 550 claims all failed ([116], [121]–[122]).
• The published reasons do not deal with costs or mention any appeal.

🧭 Practical Lessons

• For self-represented litigants: In a Fair Work disability claim, you need to prove a loss of bodily function, not a particular diagnosis, and it need not still exist when you are dismissed ([44]–[45]).
• For self-represented litigants: The Court asks why the decision-maker acted, not whether the dismissal was fair ([35]–[36]).
• For self-represented litigants: If your case depends on reasonable adjustments, the choice of law matters. This Court held the Fair Work Act exception does not require them ([91], [99]).
• For practitioners: Plead any construction argument that changes the case the other side must meet. An outline of submissions was "an insufficient step" here ([98]).
• For practitioners: Workplace policies and the employee's own concessions can establish the inherent requirements of a position ([104]–[105]).

🧠 Take-Home Lesson

• On this Court's reading, an employer relying on the Fair Work Act inherent requirements exception does not have to show it offered reasonable adjustments.
• Proving a disability is only the first step. The employer still succeeds if it proves the real reason was the inherent requirements of the job.

"Same words, different Acts: 'inherent requirements' under the Fair Work Act do not bring reasonable adjustments with them."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.