What happens when mental health issues intersect with allegations of misconduct? Here’s how HR can tackle the challenge of balancing empathy with procedural fairness.

Misconduct investigations at work are rarely straightforward. Between ensuring procedural fairness, collating reliable evidence of transgressions and managing emotional responses, these processes regularly test the patience and resilience of both HR and managers.

When a case of misconduct involves employees who are suffering from mental health conditions, these situations become even more complex and emotionally charged.

While it’s important to take into account employees’ wellbeing and personal circumstances during an investigation, mental health issues should not prevent them from taking place, says Will Snow, Director at Snow Legal.

“It doesn’t give people a get-out-of-jail-free card for bad behaviour that’s targeted at someone,” he says. 

Instead, employers should proceed with the investigation in the most empathetic way possible, and offer some leeway or extra support throughout the process where possible. This might look like offering extra time to respond to allegations, giving them a chance to respond in writing or reminding them of their right to a support person. 

In cases where misconduct investigations lead to dismissal, and this dismissal is contested by the employee, it’s possible that the Fair Work Commission (FWC) will take into account the employee’s mental health in determining whether the dismissal was unfair. 

As a result, it’s crucial for HR to handle the situation delicately and strike the right balance between empathy and procedural fairness. 

Here are three legal considerations to keep in mind when misconduct cases intersect with mental health issues. 

1. Is the employee’s behaviour creating an unsafe working environment?

During a misconduct investigation, employers should consider not only the wellbeing of the person under investigation, but also the impact their behaviour has on the wellbeing of others. 

For example, last year, the FWC rejected an unfair dismissal claim from a worker terminated for serious misconduct after finding that he had breached his safety obligations by working while unfit due to serious mental health conditions. 

However, employers should be careful not to assume that any negative behaviour on the part of an employee creates an unsafe work environment for others.

For instance, in another recent FWC case, a senior employee who had recently returned to work following mental health leave was dismissed following allegations of misconduct, which suggested that their behaviour had contributed to an “unsafe” workplace for their team. 

The employee had been diagnosed with depression, anxiety and burnout, in part due to an unmanageable workload. 

Concerns were raised about their interactions with colleagues and their emotional state during times of stress, including speaking bluntly when delivering feedback.

However, evidence provided by witnesses on the specific incidents varied, and the FWC did not accept that, even if they had taken place as described, that they would have jeopardised employees’ safety.

The increasing focus on psychological and psychosocial safety at work in recent years is undoubtedly a positive development, but sometimes means these terms are applied too liberally, says Snow. 

“The idea that any difficult interactions with colleagues create a risk to health and safety comes up a lot when you’re managing these cases,” he says. “But the fact that some people don’t get along and don’t like working together is just life, so it’s a very thin [argument].”

“[Mental health] doesn’t give people a get-out-of-jail-free card for bad behaviour that’s targeted at someone.” – Will Snow, Director, Snow Legal.

2. Can employers conduct investigations while employees are on mental health leave?

Beyond the specific allegations, the case above also highlights the broader question of how employers should approach investigations while an employee is on leave.

The employee in this case first learned of the ongoing investigation against them on the day they returned from several months of mental health leave.

According to Snow, there’s generally nothing unlawful about conducting a misconduct investigation while the employee in question is on leave, regardless of what type of leave they’re taking.

“In fact, when people go on leave, you can often get more information than you can otherwise,” he says. “Because if you’re my boss and I’ve got concerns about you, and you’re there at work, I’m just not going to say anything. 

“But, if you go on leave and someone else comes to me, I might [feel more comfortable] talking about what’s of concern to me. So that’s quite common.”

However, it remains crucial to afford the employee in question procedural fairness and transparency about the investigation upon their return. 

3. What if an employee has not disclosed their mental health condition?

Moderate to severe mental health conditions are generally categorised as disabilities for the purposes of the Disability Discrimination Act, meaning that employers are obligated to provide ‘reasonable adjustments’ to support employees with these conditions in their roles – including during the disciplinary process.

“This might include allowing support people, offering additional time to respond to allegations or offering flexibility in modes of response,” says Michael Byrnes, Partner at Swaab. 

For example, you might offer that employee the chance to respond to allegations of misconduct via an email – which you can later discuss in person – rather than expecting them to respond immediately in a face-to-face environment or over the phone.

In a case brought to the FWC in 2022, a dismissed security officer claimed his termination was unfair given that his employer failed to consider his pre-existing psychiatric conditions during the investigation. He had been under investigation for performance and conduct issues, including sleeping on duty, improperly accessing CCTV footage, allegedly intimidating a colleague and leaving his post early.

However, in its deliberations, the FWC noted that the employee had not properly disclosed his mental health condition and needs to his employer.

“An employer can’t take into account something of which they’re not aware,” says Byrnes.

“Employees generally don’t have a positive obligation before employment to disclose that they’ve got a mental health condition. But, if they are aware they have a condition that might compromise their ability to perform a role safely, that enlivens an obligation on the part of the employee [under work health and safety legislation] to either disclose that or to abstain from performing that particular work. 

“In this case, [the employee] was asked the question before employment, but didn’t provide a fully candid response, and, therefore, was performing work in circumstances where it was unsafe for him to be doing so.”

As a result, the employee’s unfair dismissal application was rejected.

To avoid instances like this arising, it’s advisable to examine your recruitment processes to ensure employees are given ample opportunity to disclose any relevant health conditions, and that they have a safe environment in which to do so. 

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

Gain the knowledge and practical skills to assess workplace complaints, gather corroborative information and make critical decisions based on investigation outcomes with AHRI’s Investigating Workplace Misconduct short course.