Picture this: You are a manager or an HR professional in a performance management meeting with an employee who has been repeatedly late to work. During the meeting, the employee becomes tearful. They also say that they are dealing with some personal issues and are “not right in themselves”, but do not elaborate further.
The employee’s employment is eventually terminated. It later becomes apparent that the employee suffers from a major depressive illness. Should you have known this during the meeting? Should you have done anything differently?
Dealing with mental health issues in the workplace can be a fraught subject. Often, employers want to care for and support their worker, but are also conscious of not prying too far into private health issues that the individual may not want to discuss. Work health and safety issues, for both the worker and their colleagues, can be a concern. As the good work of mental health advocates continues to spread awareness, anecdotally, HR professionals and managers are grappling with these issues more frequently. A recent decision of the Federal Circuit Court provides an interesting case study on managing employees with a mental illness.
- When dealing with mental health issues in the workplace, employers must find a balance between supporting their workers and not prying too far into their private issues.
- It is important for employers to have clear medical evidence before making a decision to terminate an employee’s employment on the basis that they can no longer perform their job.
Kubat v Northern Health involved a claim brought by a former employee of Northern Health (a major public provider of public healthcare in the northern suburbs of Melbourne) under the Fair Work Act 2009 (Cth) (FW Act), alleging that Northern Health had taken adverse action against her in contravention of the FW act because of reasons that included her mental disability, namely a major depressive order.
The employee had previously been employed by Northern Health as an on-site Turkish interpreter from April 2011. Throughout the first part of 2012, the employee was late or absent from work on a number of occasions, and also missed a number of appointments in which she was scheduled to provide interpreting services. In July 2012, she was given a first warning. Between July 2012 and September 2012, the employee took a number of periods of personal leave, and ultimately stayed off work. In November and December 2012, she provided Northern Health with a WorkCover claim (which was later rejected) and evidence that she was suffering a recurrent major depressive illness.
In July 2013, the employee informed her employer, Northern Health, who arranged for her to attend an independent medical examination. The medical examiner’s advice was ultimately that the employee should avoid all unnecessary conflict or stress, and that exposure to difficult situations or conflict in the workplace could exacerbate her condition. On 2 May 2014, the employee’s employment was terminated by Northern Health on the basis that she was unable to safely perform the inherent requirements of her position.
The employee then brought a claim in the Federal Circuit Court alleging a number of grounds of adverse action in breach of the FW Act.
Judge Riley found that the employee had no grounds for her claims and dismissed her application.
Alleged altering of position to employee’s prejudice
The employee claimed that Northern Health had taken adverse action against her by altering her position to her prejudice when:
- one of her managers told her that she was ‘no longer an asset’ (which she allegedly lowered her in Northern Health’s esteem0; and
- when the Human Resources Manager questioned the validity of her medical certificate (which the employee alleged meant that she had ceased to be a trusted employee).
However, Judge Riley found that, even assuming the alleged comments were made, to say an employee is ‘no longer an asset’ is a mere observation, while the challenging of the validity of a medical certificate would not cause a person to cease to be a trusted employee. As a result, there was no change in in the employee’s position that could ground an adverse action claim.
Alleged unreasonable disciplinary action
The employee also claimed that Northern Health had taken unlawful adverse action against her by taking unreasonable disciplinary action (in the form of the July 2012 warning) because of her depression. However, Judge Riley noted that the employee had conceded in cross-examination that she had not told any employees of Northern Health that she had a mental disability at the time of the alleged incident, and also found that the employee’s previous statement to her superior that she had personal issues and “she was note right in herself” were insufficient to communicate her depression. Judge Riley found that:
- “personal issues and not being well in oneself” are vague concepts and can refer to a broad range of things;
- that being tearful could be a sign of depression but was also an expected reaction when subjected to a disciplinary meeting; and
- that being repeatedly late for work could be a sign of depression but could also indicate a lack of commitment to the job.
Suggestion that the employee resign
Judge Riley also found that suggesting an employee resign would not be sufficient behaviour to bring an adverse action claim without further action such as a demotion, a reduction of working hours, or relocating the employee’s workplace. In addition, given that Judge Riley had found that the employee’s supervisor was not aware of her depression at the time the alleged suggestion was made, the reasons for suggesting that she resign could not have included the employee’s depression in any case.
Failure to allow the employee to return to work or make alleged reasonable adjustments
Judge Riley also found that Northern Health’s actions in refusing to allow the applicant to return to work for one half day per wek and requiring her to be cleared to work a full day per week did not constitute unlawful adverse action, given that the employee’s position required her to work three full days per week.
Judge Riley accepted that Northern Health’s evidence that it was impossible to guarantee that, consistent with the independent medical examiner’s recommendation, the employee would be spared “all unnecessary conflict or stress,” given that stressful situations for an interpreter in the hospital environment were unpredictable and could not be confined to a certain area of the hospital. On this basis, Judge Riley held that there were no reasonable adjustments that could be made by Northern Health. Her Honour further held that even if there had been adverse action by the hospital by not making adjustments to the employee’s working hours, Northern Health’s defence would be that this was because of the inherent requirements of the particular position concerned.
Termination of employment
Finally, in relation to the employee’s claim that her dismissal from her employment was unlawful adverse action, Judge Riley held that no reasonable adjustments could have been made that would have permitted her to return to work, and that even if she had bene permitted to work one half day per week, she would not have been able to fulfil the inherent requirements of her position because of the restriction on being places in a stressful environment, as set our above.
Key points for employers
- This case highlights the importance of having clear medical evidence before making a decision to terminate an employee’s employment on the basis that they cannot perform the inherent requirements of their position, regardless of whether the illness is physical or mental. In this case, the employer obtained independent medical evidence, south further clarifying information from the independent medical examine, and gave the employee ample opportunity to respond and provide her own medical evidence.
- Similarly, employers should carefully consider whether they are able to make reasonable adjustments to accommodate an employee’s mental illness. While in this case such adjustments were not possible, each case will depend on its facts. Failing to make reasonable adjustments can be a breach of adverse action laws under the FW Act, as well as federal and state discrimination laws.
- This case also confirms that if an employee does not expressly communicate that he or is suffering from a mental illness, his or her employer will not necessarily be attributed with knowledge of that mental disability. However, employees should always be aware of their work health and safety responsibilities and should seek further advice if concerned about an employee’s wellbeing in the workplace.
Amie Frydenberg – Senior Associate, Lander & Rogers
Annika Anderson- Lawyer, Lander & Rogers
-  FCCA 3050.
This article was originally published in the Autumn 2016 | Workplace Relations & Safety Bulletin by Lander & Rogers, and republished with permission.
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