Applying workplace disciplinary law to a worker who suffers (or may suffer) from mental illness is complex. Competing laws such as anti-discrimination law and work health and safety laws must be finely balanced, and this complexity is exacerbated by the fact that mental illness is not always easily defined or diagnosed – indeed, even mental health experts find it hard to agree on a definition.

So how does a business ensure it is legally compliant when dealing with a worker who suffers (or may suffer) from mental illness? And most importantly, how can it ensure that it does not cause harm to anyone when it applies disciplinary processes?

The Six Golden Rules

Rule #1: Have Strong Policies and Processes In Place.

Ensure your disciplinary processes and policies have been designed to take the key issues around mental health into account. Audit your processes to ensure that they are up-to-date and accommodate all relevant laws.

Rule #2: Ensure Your People Are On Board.

Ensure your people know how to validly apply your processes. Well intentioned HR people sometimes talk of ‘charging’ people for policy breaches as if they are prosecutors under mainstream criminal laws. This approach inflames some and suppresses others. Neither outcome is positive, and may put the health of some at risk.

Rule #3: Challenge Your Bias.

If you are aware that a person suffers from a mental illness, question your own conscious and unconscious biases about mental illness. We kid ourselves that we have entered a new era of acceptance – we are merely knocking on the door of that new era. Challenge any readiness to accept the validity of complaints about persons with mental illness. Ensure you obtain statements of the facts that are as accurate as possible, and make sure you act only on facts.

Rule #4: Be Fair.

Apply your disciplinary processes fairly and transparently, and without bias. Do not take short cuts.

Rule #5: Don’t Delay.

Do not delay when it comes time to apply a disciplinary process. Make sure you apply processes in a timely manner, keep everyone updated and make timely decisions. A little-known fact is that delay in occupational disciplinary law is a cause of workplace psychological injury and can exacerbate existing mental illness.

Rule #6: Seek Help If You Need To.

Until recently, mental illness was rarely, if ever, discussed at work. People were not encouraged to disclose their illness because of the stigma attached to it (and which some say, still attaches). Most of us make significant mistakes when we insist we know what we are doing when we do not. In truth, most of us are novices when it comes to managing issues related to mental illness in the workplace, and we should always seek help if we need it rather than assume we know what we are doing and end up causing harm and/or breaking the law.

Lessons from Some Key Cases

A number of key cases in recent times have demonstrated the importance of ensuring that any alleged misconduct is not caused by or related to the employee’s mental illness. The fact that alleged misconduct was the result of, or the manifestation of, an employee’s mental illness may provide a defence with respect to the alleged misconduct (or is otherwise a mitigating factor in determining the appropriate action to be taken).

Employers also need to take care when dismissing an employee for ‘misconduct’ in circumstances where the impugned conduct may derive from or be related to a mental illness.

Many cases have made it clear that employers should determine if an employee can safely perform the ‘inherent requirements’ of a role if reasonable adjustments can be made, and also demonstrate that employees must be managed from a work health and safety perspective rather than a strict disciplinary perspective.

These issues have been explored in the following cases:

  • Vernham v Jayco Corporation Pty Ltd [2015] FWC 8185;

  • State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184;

  • Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 1052; and

  • Gibbons v Commonwealth of Australia & Ors [2010] FMCA.

Equally however, employers should remember that there may be times when reasonable adjustments cannot be made to accommodate a person’s mental illness for a variety of reasons, including that the health and safety of others is put at risk.

Key Takeaways

It is safe to say that, to date, those suffering mental illness have often suffered in the workplace, and have been bullied and treated unfairly.

Workplace law is evolving to require all of us to accept a broader concept of diversity (race, gender and disability) and it is penalising behaviours that were described in the days of Mad Men as ‘having a bit of fun’ or ‘larrikinism’. Some of these terms in fact translate to bullying, racism and sexism, all of which are unlawful in the workplace.