To assume or not to assume: Assumed disability and discrimination in the workplace

In recent years there has been an increased focus on the existence of mental health issues - and what can be done about addressing those issues - in both personal and professional spheres. 

In the workplace, it has meant that employers are increasingly being encouraged to identify the signs of mental health issues at work and to foster a culture of communication about those issues amongst its workforce. However, as a recent case decided before the NSW Civil and Administrative Tribunal (NCAT) illustrates, employers must take particular care when addressing concerns raised internally about an employee’s mental health. 

The facts 

In Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106, Ms Stefanac was awarded compensation after her complaint of “assumed disability” discrimination was upheld by NCAT. Ms Stefanac, a case worker at the Department of Family and Community Services, had been directed to take a period of ‘sick leave’ after concerns had been raised internally about her mental state. 

In particular, Ms Stefanac was said to have had a number of conversations with colleagues at the Department in which she had spoken openly of various conspiracy theories. Those conversations were alleged to include statements to the effect that: 

• a planet or meteorite was heading towards earth
• the government knows about this but is covering it up. 

These conversations were internally reported to the employer’s human resources department. 

Based on concerns held by the Department, including that Ms Stefanac’s role as a ‘case worker’ involved the care and management of vulnerable children, a direction was issued to Ms Stefanac that she take ‘sick leave’ until a determination was made as to her fitness for work moving forward. 

Ms Stefanac did take a period of leave before being formally certified to return to work by her treating practitioner. At all times Ms Stefanac maintained that she did not have any medical issues relating to her mental state. 

Ms Stefanac lodged a discrimination complaint to NCAT on the basis that she had been discriminated against as a result of a perceived or assumed disability, being, in this case, that Ms Stefanac was suffering from a mental health illness. 

The findings  

In considering the complaint, NCAT considered the relevant sections of the Anti-Discrimination Act 1977 (NSW) (the Act), including, relevantly, that the definition of disability in the Act included that of an “assumed” disability. 

The Tribunal ultimately found that:

• the disability - being the mental illness - had been assumed by the Department and was not otherwise substantiated in the circumstances
• at least one of the reasons that the Department had directed the employee to take Sick Leave was because of the assumed disability
• the direction caused detriment to Ms Stefanac, including at a minimum, because it resulted in an injury to Ms Stefanac’s feelings.

NCAT ordered the Department to pay $20,000 to Ms Stefanac in compensation for pain and suffering, but did not require the Department to issue a formal apology as had been sought by Ms Stefanac. In addressing that issue, NCAT did note that the Department had genuinely thought that Ms Stefanac had a mental illness at the time of making the direction. 

The lessons 

This case serves as an important reminder to employers that concerns relating to an employee’s mental health should always be approached with caution and in accordance with internal policies and procedures. In particular - and either directly or indirectly - the case raises a number of broader questions. Some of these questions are flagged below. 

• Ability to issue lawful and reasonable directions
  When dealing with ill or injured employees (or in this case, assumed to be ill or injured employees), a key issue will always be what will and what will not constitute a lawful and reasonable direction. Commonly this issue will arise where an employee who has been on extended sick leave is directed to obtain a medical clearance for fitness to work before returning to the workplace. Generally speaking, and subject always to the facts of the case, this will constitute a lawful and reasonable direction of the employer.
  In this case, however, the relevant ‘direction’ was made in circumstances where Ms Stefanac had not already been on a period of requested and/or approved sick leave and had not herself asserted that there was any medical condition from which she was suffering. It was in that context, that the direction was held to be unlawful. 
• Limits on the duty to ensure health and safety?
  An employer will always have a duty to ensure the health and safety of its workforce. However, and as this case illustrates, that duty does not operate to the exclusion of other obligations and statutory duties owed by the employer to its employees.
  In other words, the Department was not entitled to assert that it was discharging its duty to ensure the health and safety of its employees, because the actions it took were held to impinge upon Ms Stefanac’s right not to be discriminated against in the workplace. 
• Importance of procedural fairness
  Employers must ensure that, to the extent possible, the processes followed in managing employees accord with the principles of procedural fairness. This includes processes relating to the management of ill or injured, or assumed to be ill or injured, employees.
  In this case, the Tribunal was not required to make a determination about the fairness or otherwise of the Department’s protocols or procedures, however Ms Stefanac’s allegations that she was not given an opportunity to discuss the Department’s concerns with her supervisor nor was she given a copy of the letter that was provided to her treating practitioner were noted. 
• Diversity in the workplace
  Workplaces are diverse environments which are inherently made up of people who are different. In that context, it is critical that a distinction is always drawn between behaviour and conduct that is inappropriate and/or unacceptable, and behaviour or conduct that is simply different to that which the employer, or senior management of the employer, is personally accustomed to. If the latter, it will need to be treated and respected as such. 

The issues and areas highlighted above are ones commonly encountered by us as part of our workplace relations and safety practice. If any of these issues are of interest to you or your organisation, or you would like further information, please contact us to discuss. 

A copy of the Case - which has not been appealed by the Department as at the date of writing - can be found here.

Author: Ashleigh Mills

Contacts:

Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Published by:

Ashleigh Mills

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