Going postal: Fair Work Commission rules sacking of mentally ill employee unfair

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Going postal: Fair Work Commission rules sacking of mentally ill employee unfair

Going postal: Fair Work Commission rules sacking of mentally ill employee unfair

To create a winning workplace culture employers needs to be proactive when managing mental health issues in the workplace. Ignoring employee’s mental health issues can affect workplace productivity and lead to costly and time consuming workplace disputes.

 

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Employers need to understand their responsibilities when managing employees who are suffering from mental illness. This includes being aware of mental health indicators – for example, sudden drops in performance or inappropriate workplace behaviour.

The Fair Work Commission recently ruled a worker who threatened to “go postal” was dismissed in part because of his mental illness. As such, the dismissal was deemed unfair.

The Commissioner said that the forklift driver’s mental illness was a mitigating factor that should have been considered by his employer, although she reduced his compensation because of his serious misconduct.

The driver, who had worked for the camping and caravan specialist for 15 years, complained he was experiencing difficulties in the workplace, including bullying and discrimination. He also said his workload had been increased without consultation, which left him in a “state of suicidal contemplation and depression”.

In addition, he was dealing with other personal issues including relationship and financial difficulties. At the same time, the driver was also receiving workers’ compensation for a back injury and there were problems with his payments. A second compensation claim for psychological injuries was also rejected, which further compounded stress and anxiety, he claimed.

After the driver had been cleared to return to work, he refused to do so, arguing that the company was bullying him because it had failed to take into account his psychological issues. He said the company was “forcing” him to return to work.

Against this backdrop, in November last year the driver forwarded an email to his workers’ compensation caseworker in which he had written, “I mean what is the worst that could happen, I go ‘postal’ due to psycho social stress and start taking those people that have hurt me!”

Then in January this year, the company received a call from a person who identified herself only as “Kathy”, who had been living with the employee, alleging that he was a “fraud”, that it should survey [conduct surveillance on] him, that he was suicidal and had made threats to “kill” other people.

The employer then summarily dismissed the employee, arguing the company could no longer “ignore” the threats and that it needed to protect the health and safety of its staff.

The driver argued that he was denied procedural fairness because he was not allowed to respond to the reasons for his dismissal.

The company argued that the “real and significant risk” to other employees was such that any response would not have changed the result.

The Commissioner found this was “not an acceptable reason or justification” for not providing the chance for the employee to respond and noted that there were nearly three months between the emailed threat and the company’s decision to dismiss him.

The company could not have known what [the employee] was going to put forward and so were not in a position to pre-judge the outcome,” she said.

The Commissioner also observed that “there is no evidence before me that an attempt was made to independently check and corroborate what ‘Kathy’ had allegedly said. It seems to have simply been taken to be truthful and was used to confirm that what [the employee] had said in his emails was true. “

The Commissioner accepted that the employee’s mental state was a relevant factor and that there was a direct causal link between his mental condition at the time he sent the emails and his decision to send them.

The Commissioner was also satisfied that the employer was aware at the time the employee sent the email that he was not in a strong mental state. She found the company had been given enough “signals” and “sufficient information” to conclude the employee was mentally unwell and that it should have enquired about his health.

“[The employee] was not given an opportunity to respond to the reasons for his dismissal and so was unable to explain to the company what his mental state was at the time. That [the employee] was mentally unwell when he sent the emails is a relevant factor which the company should have taken into consideration in making the final decision to dismiss him.

“A period of nearly three months elapsed between the sending of the emails and the date of [the employee’s] dismissal. The company’s failure to give [the driver] an opportunity to respond compounded the procedural unfairness by not taking into account a factor that was relevant to their decision making,” the Commissioner found.

iHR believes that prevention is the best cure and it is important that managers work with employees to establish the underlying causes of underperformance and avoid costly and time-consuming court action. Managers need to look for early indicators of mental illness and effectively manage staff that are showing signs of mental illness while also adhering to their legal responsibilities. iHR offers training in managing mental ill health in the workplace to assist employers in managing this complex issue as well as an online module via our sister company World Learning Hub.