Mental health at work – incapacity for work, disability and discrimination.
Mental Disability Dismissal Decision
In an important decision concerning incapacity for work due to mental disability, a full bench of the Federal Court has upheld an employer’s appeal against a decision that it discriminated against a worker based on his mental disability when it dismissed him after he had not attended the workplace for seven months.
The Federal Court initially awarded the employee who suffered from depression $140,000 compensation finding that he was dismissed because of his disability under the general protections provisions in the Fair Work Act. His medical certificates stated during this period he had no capacity for work.
The employee failed to comply with repeated requests to attend an independent medical assessment which was an attempt by the employer to transition him back to the workplace.
In this case, the company developed concerns that the employee would not be able to return to work. The court agreed with the employer’s position that the disability was not the inherent reason for dismissing the worker but, in fact, the incapacity for work was the key issue. It drew a clear distinction between these two issues.
It is important to note that this is not a case where there was discussion about what duties the employee may or may not be able to perform on his return to work. He simply did not attend the workplace and provided no indication of when this situation may change.
This case highlights that a dismissal can indeed be made based on the consequences of a disability and NOT be discriminatory. Employers need to understand that each case will have its own circumstances and to get legal advice before terminating an employment contact.
TTIA has a full time Legal Officer who can assist in alleged disability or discrimination cases. There has been a noticeable increase in assistance sought by employers on dealing with staff claiming depression and other mental health issues. You are urged to call the Association on (02) 9264 0011 if you need advice on how to handle this issue at your workplace.
The TTIA’s telephone advisory service is specifically for Members who are employers in the timber and tree contracting industry. Our experienced in-house team are just a call away, helping to find the most effective way to manage your business with regard to industrial relations, award interpretation, WHS queries, etc. The Hotline is available to Members 52 weeks per year, with no restriction on how often calls are made.
My experience confirms that for business in 2020, we now live in an extremely litigation-friendly environment where incorrect responses to employee queries and requests can have costly ramifications.
This makes even more sense for business to utilise the expertise of this unique and valuable timber industry resource.
The TTIA employers’ Hotline can be reached on (02) 9264 0011.
Chief Executive Officer