Unfair dismissal sparked by mental health issues: “totally unreasonable”

10 July 2014

The Fair Work Commission (FWC) has ruled the dismissal of a Melbourne engineer was “invalid and unfair” due to the employer’s failure to take the employee’s mental health into account.

After refusing to agree to a crew change and sending emails to his employer that contained “alarming, incorrect and threatening statements”, the engineer was fired for misconduct in December last year. The outcome of the investigation and FWC case that followed was published by Workplace Express on 2 July.

Commissioner John Ryan revealed that, after the dismissal, the employee provided the FWC with medical certificates that showed he was being treated by both a psychiatrist and psychologist at the time the behaviour occurred. Commissioner Ryan explained that it appeared the managers did not give “sufficient if any weight to the obvious mental health problems” which had also rendered the employee unable to work for the 6 months prior to his dismissal. Commissioner Ryan further stated that, based on the evidence, it “appears totally unreasonable for the [company] to come to the conclusion that the [employee] engaged in serious misconduct”.

The emails that sparked the misconduct charge were sent to the company’s managing director and included references to management being “incompetent” and alleged that the engineer felt his managers were “trying to kill me and my family”. Commissioner Ryan explained that the engineer’s mental health should be “strong reason for excusing the conduct” and this, coupled with “somewhat poor English language skills” had not been properly considered by the employer.

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While the commission was unable to reinstate the engineer, due to the company since having closed down the site at which he was employed, a decision was made to award compensation. The amount offered to the dismissed employee will be approximately equal to wages lost up until the time the worker would have been made redundant, as well as redundancy payments as paid to other engineers when the site closed.

This echoes another recent case where a lawyer was reinstated following FWC proceedings. In this case, Judge Burchardt commented:

“[The employee] is not the first, and will not be the last, person to suffer ill health interrelated with misconduct. The FW Act gives people in [the employee’s] position the benefit of protection. It is important that the nature of this protection be generally understood.”

It is clear from cases such as these, alongside a recent study on workplace mental health plus the current Heads Up campaign, that mental health is an area on which there is considerable focus at the moment.

Employers cannot ignore the issue and should take steps to mitigate risk, for example, conducting an independent workplace investigation may be necessary where issues are raised around conduct. Providing training is also important and encouraging employees to come forward with issues which may cause undue stress and contribute to poor mental health, this may include instances of workplace bullying.

For more information on workplace investigations and workplace bullying training get in touch with iHR Australia on 1300 884 867 or make an online enquiry.

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