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Managing employees with mental disabilities – an important reminder for employers

12 May 2020

#Workplace Relations & Safety

Louise Rumble

Published by Louise Rumble, Georgie Richardson

Managing employees with mental disabilities – an important reminder for employers

The need for employers to exercise caution when managing employees with mental illness was highlighted in a recent Federal Circuit Court decision1 in which an employee’s claims that his employer took adverse action against him for having a mental health condition and complaints of bullying and harassment were dismissed.

The facts

Mr Batista (Applicant), who was employed as a stock checker tasked with travelling to asset sites, was dismissed after a workplace investigation found he repeatedly failed to comply with work procedures and directions that were critical to the business's operations.

The Applicant applied to the Fair Work Commission (FWC) for stop-bullying orders asserting that his direct manager had harassed and bullied him over work mistakes, which was followed by his dismissal less than one month later.

The Applicant alleged that the following adverse action was taken against him:

  • he was issued with a warning letter
  • the Respondent commenced an investigation into his conduct and work performance
  • he was placed on paid administrative leave from 23 February 2018, pending the investigation into his misconduct
  • the Respondent made adverse findings in respect to the Applicant’s performance and conduct at the end of the investigation
  • he was dismissed on 27 March 2018 as a result of the findings of the investigation.

The Applicant asserted that this adverse action was taken against him by the Respondent because he exercised the following workplace rights:

  • he complained, by email, to the Respondent’s Human Resources Manager and his direct manager about bullying he was experiencing from his direct manager on 16 October 2017
  • he made a further complaint that customers were ridiculing him during a telephone discussion with the Respondent’s Human Resources Manager and his direct manager on 30 November 2017
  • he repeated allegations of bullying and harassment by his direct manager to the Respondent’s Employee Relations Manager in a telephone conversation on 20 February 2018
  • he commenced proceedings in the FWC on 27 February 2018 seeking an order that the Respondent “stop bullying”.

The Applicant also claimed discrimination on the grounds of disability in breach of section 351 of the Fair Work Act 2009 (Cth) (FW Act) as he alleged that one of the reasons that the Respondent took adverse action against him was because he was unable to attend work by 9:00am on the days he was required to be in the office. He claimed that his inability to attend work was a manifestation of a mental disability, being depression and anxiety. He asserted that the Respondent was aware of this disability and that, as such, adverse action was taken for a prohibited reason. The Respondent denied that it was aware that the Applicant suffered from a mental disability and that that it dismissed him for any prohibited reason.

The Applicant sought relief in the form of reinstatement, compensation and damages suffered as a result of the alleged breaches. He also sought that penalties be imposed on the Respondent for its actions.

The Respondent denied that the Applicant was entitled to any relief and asserted that the actions taken were as a result of his repeated failure to comply with the Respondent’s policies and directions and because the Applicant had engaged in misconduct in the workplace. 

Was adverse action taken for a prohibited reason?

The Court was satisfied that adverse action was taken by the Respondent against the Applicant in the form of the disciplinary process and his dismissal.

The Respondent was required to demonstrate that any adverse action taken was not because of the complaints the Applicant made or the “stop bullying” application made to the FWC.

The Court found that the reasons detailed by each decision maker as to why they chose to take the actions they did against the Applicant were limited to concerns that arose in relation to the Applicant’s performance and conduct. This included, for example, the Applicant’s failure to follow the Respondent’s policy on at least twelve occasions, not complying with a customer request, becoming embroiled in an inappropriate email exchange with a colleague that was copied to many other people, and not attending the office on at least two occasions. 

The Court accepted that the reasons for the adverse action were lawful. The Applicant’s performance and his conduct were substantial and operative reasons for the decisions that were made. 

The Court was satisfied that, on the balance of probabilities, adverse action was not taken against the Applicant for a prohibited reason. 

The discrimination claim

The Applicant also alleged that adverse action was taken against him because his anxiety and depression rendered him unable to attend the office (or made it more difficult for him to attend the office) at 9:00am on the first day of each month. The Applicant alleged that the inability (or difficulty) to attend the office was a manifestation of his disability and part of the reason for the adverse action being taken was for a prohibited reason. 

The Court did not accept that it was a ‘manifestation’ of the Applicant’s disability that he could not attend work on the first day of each month. The Court was not satisfied that the Applicant made any accommodation request or indicated to the Respondent that his inability to attend the office was ‘because of’ his mental illness or a manifestation of it. There was no evidence to suggest that the Applicant ever advised he had difficulty attending the office because of his disability.

Further, in the Applicant’s closing submissions he stated that his disability had an adverse effect on his performance due to the fatigue and sleeping difficulties that he suffered, being a manifestation of his disability. No material was before the Court substantiating the effects of the Applicant’s disability on his performance or the medications he was taking, such as fatigue or memory loss.

The Court was also not satisfied that the Respondent was aware that any disability existed which might have manifested itself in the ways claimed by the Applicant. All that the decision makers observed were symptoms and behaviours of the Applicant, which the Court stated did not amount to knowledge.

The Court found that the Applicant’s conduct and performance issues could be severed from any disability he had. The cause of the Applicant’s conduct and performance issues played no role in any of the decisions made by the Respondent.

Lessons for employers

In this case, the Respondent did not know the employee suffered mental illness and the evidence did not support the Applicant’s allegation that his mental illness impacted upon his performance. Employers ought not to assume, however, that the fact an employee not formally disclosing a mental illness means there is no potential legal exposure to a disability claim on the basis of not having knowledge of the disability. Indicators such as changes to employee behaviour and/or difficulties with meeting required standards of performance, may be enough to put employers on notice that the employee has an underlying mental health issue. 

With increasing awareness of mental illnesses in the workplace, it is important for employers to understand their obligations when managing employees who have related or underlying mental health issues. When managing employees with disabilities, employers should ensure that:

  • caution is exercised when managing employees who have related or underlying mental health issues given the potential legal exposure arising from decisions with respect to disciplinary action and/or termination
  • an employees' disability is not included as a reason for taking adverse action (such as termination of employment) against the employee and that careful consideration is given to the inherent requirements of the employee’s position before seeking to rely on that specific statutory defence
  • consideration is given to whether reasonable adjustments are required to enable an employee with a disability to perform their role (subject to whether this would cause the employer an unjustifiable hardship) in accordance with an employer’s obligations under discrimination legislation
  • they are mindful of their obligations with respect to the employee’s health and safety including under the Work Health and Safety Act 2011 as ‘health’ is defined as both psychological and physical. Employers need to provide a safe and healthy workplace for all workers that does not cause ill health or aggravate existing conditions.

Authors: Louise Rumble & Georgie Richardson

1 Batista v Wells Fargo International Finance (Australia) Pty Ltd (No.2) [2020] FCCA 829.

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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Louise Rumble

Published by Louise Rumble, Georgie Richardson

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