A recent case has highlighted the significant challenges and risks employers face when seeking to dismiss employees suffering from mental illness.
Dismissing an employee at any time can be fraught with danger, but employers should be on alert that the subject of dismissal of an employee suffering an illness is one that requires particularly close and careful consideration.
In a recent case[1], the Fair Work Commission has found that an employee had been unfairly dismissed from his position on the basis of his mental illness.
The case related to a public hospital’s dismissal of an audio-typist from his position on the basis of his mental illness. The employee had undergone psychiatric assessment at the request of the employer, after repeated complaints by other employees about what they described as the employee’s “weird’’ and “disturbing” emails.
The psychiatric assessment concluded that he had paranoid schizophrenia and was not getting help or taking medication for the condition. The expert said the employee did not have a current capacity for work and might be disruptive in the workplace. The expert also said the employee would need treatment and a certificate saying he was fit to return to work before he returned.
The employee’s employment was terminated based on the psychiatric report.
However, the commission found that the termination was harsh, unjust or at the least, unreasonable – and that there was no valid reason to sack the employee.
Importantly, the commission considered the expert’s evidence and said that whilst the expert had concluded that the employee did not have “a current capacity to return to work”, this did not equate to a permanent incapacity to perform work for the employer.
The commission ordered that the employee be reinstated and paid his lost earnings[2].
Management of employees with mental illness is often a vexed issue for employers; a bespoke approach is needed, fashioned to the circumstances of the individual case.
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[1] Applicant v Respondent [2013] FWC 7421
[2] Albeit the employee was still required to first produce clearance from both a treating psychologist and a treating psychiatrist that he was fit to return to work
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