A core part of my practice involves advising HR professionals how to manage ill and injured workers.
In the past, these injuries were physical. It was rare when a psychological illness arose. This is no longer the case; and not surprising given that one in five Australian adults will experience mental illness in any given year, and 45 per cent will experience a mental illness during their life.
Clients often ask us whether the process of managing a psychologically ill worker is different to managing a physically injured one. From a legal perspective, decisions show there is generally no difference.
Recent legal decisions
When managing physically injured workers there are key principles to keep in mind. These stem from the myriad laws in place aimed at protecting workers with a disability.These include that:
- It is generally unlawful to treat an employee less favourably because of their illness or injury.
- Employment can be terminated if an employee cannot perform the job in a safe manner.
- Action must be based on current relevant medical information.
- Employers must consider what reasonable adjustments might be made.
- An illness may be a mitigating factor in a decision to terminate.
As can be seen from recent unfair dismissal cases in the Fair Work Commission, these principles are no different when managing psychologically injured workers.
Chmiel v Ability Options  FWA 3067
The applicant’s employment was terminated for serious and willful misconduct for refusing to agree to an alteration to his rostered days of work. The applicant had taken an extended period of absence from work due to psychological problems. No warnings had been given.
The commission found that mental illness, whether work-related or not, should be taken into consideration when disciplining an employee: ‘whilst the applicant did exhibit unacceptable workplace behaviours, these matters were not dealt with by the employer with appropriate regard for the mental illness of the applicant.’
Vickridge v Signature Security Group  FWA 2501
The applicant’s employment was terminated for poor performance and argued the employer did not support his performance, given it knew he was mentally ill and planning suicide.
The Commission held the dismissal was lawful. The employer had suspended the performance-management process until the employee’s illness had been resolved, before recommencing the performance-management process.
Bronwen Kerry Koka v Australian Nuclear Science & Technology Organisation  FWA 2073
The applicant’s employment was terminated because she was unfit to perform her role due to a severe depressive illness. The employee had been unwell for some time, including periods of treatment in hospital. A psychiatric assessment obtained by the employer found she was permanently incapacitated. The employer decided to defer the dismissal.
Meanwhile, the employee’s psychiatrist reported she was ‘in remission’ and fit for duties. The employer concluded a risk remained and proceeded to terminate.
The commission found the termination unlawful: the most up-to-date medical evidence demonstrated that the employee was in remission.
While the legal principles are the same for managing psychologically ill employees, the practical implications are not. The day-to-day management of employees with mental illnesses can be complex.
Employee-assistance programs can provide help in managing key meetings and communications with ill employees, and also support you as an HR professional. Suicide contemplation can be a very real risk. Lifeline statistics indicate that up to 180 suicide attempts occur every day. HR professionals should have in their repertoire an ability to discuss this risk. Action plans are a valuable tool to place on your intranet or notice boards, so all know what to do. Just as organisations have staff trained in physical first aid, consider also having staff trained in suicide first aid.
Finally, most support associations have illness-specific resources to assist employers. Examples include the Australian Human Rights Commission guide to workers with mental illness, and Beyond Blue’s guidelines on depression and anxiety. These tools are fantastic for employers to understand the condition, manage an illness and meet legal obligations.
Managing mental illness in the workplace is complex, but it is possible.