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07 Apr 16 Caution when terminating employment if your employee has a mental illness
A recent ruling by the Federal Court Circuit of G v State of Victoria (the Office of Public Prosecutions)  FCCA 17 (“Grant’s case”) found that an employee’s alleged misconduct which arose wholly from the anxiety and depression was the reason for the dismissal. The Court that as a result the dismissal was unlawful and amounted to adverse action. This new ruling poses challenges to employers who are facing employees who are suffering from mental illnesses. Broadly it is important that employers must consider all factors including the effect that the illness is having upon the performance of the sufferer.
Mr Grant was an employed as a solicitor and until 2011 his employees had little or no issue with his performance. It was in 2010 when he developed DVT after an injury when issues started to arise. Mr Grant’s performance started to deteriorate, this included lateness and absentees. It was sound in early 2012 that his performance had become problematic and that this was attributed to his health issues. In Early 2012 Mr Grant informed his employers that he was suffering from depression and that he was about to recommence taking medication for depression.
Mr Grant’s employer informed him that although they were sympathetic it didn’t negate the necessity for his performance at work to be improved and if it didn’t improve it would cause additional problems.
In March 2012 Mr Grant was stood down from his position pending an investigation into allegations of serious misconduct. The investigation revealed that 4 out of 5 of the allegations were made out. Mr Grant’s union representative stated that his health was a factor in the misconduct. Mr Grant was dismissed.
Mr Grant argued in the Federal Court circuit that he was terminated due to his absences which were to do with his illness or injury, further he alternatively argued that the termination was adverse action because of his physical or mental disability.
A medical report was requested with a time frame of five days which was an extremely short time frame for reports such as these which was expressed in the doctor’s draft report (erroneously sent to the employer). The Court was of the view that the employer’s conclusion that the medical report revealed nothing was rejected. Justice Burchardt stated that it would tell any reasonable observer exactly why Mr Grant was behaving as he did and that the employer’s nose was totally out of joint and that nose did not get back into joint thereafter. Justice Burchardt also rejected the employer’s evidence that they simply had no understanding whatsoever of what depression was and what the effects were.
The Court in its decision stated that “it was clear beyond doubt that Mr Grant was the subject of adverse action in being stood down, investigated and dismissed. All these things flowed directly as the respondent was well aware from his ill health, albeit that they were equally seen to arise from misconduct”. The Court went on to state “The suggestion that the applicant was the subject of adverse action because of a temporary absence because of ill health, however, cannot possible sustained. He was not sacked because he was temporarily not at work because of ill health. He was sacked because he had misconducted himself as a result of issues arising from his ill health”.
What to learn from this case
When considering dismissal where illness may be a factor the evidence of the employer will be heavily scrutinised and cross-examined by the Court, which in this case was very negative.
The evidence of the employer will be weighed against the objective evidence and reasons for the employees conduct. In this case the subjective reasons were weighed to be unreliable when weighed against the objective reasons.
If considering dismissal due to conduct, employers must carefully consider all the objective reasons for the conduct and take special regard to any illness or injury that may be a contributing factor.
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