Are your employees’ mental health issues reasonably obvious to you…?


Posted By on 25/10/15 at 2:00 PM

CASE NOTE: Burke v Suncorp Group Pty Ltd [2015] FWC 3357
26 June 2015

In this recent decision, the Fair Work Commission found that a failure to consider an employee’s “reasonably obvious” mental health issues caused the employee’s dismissal to be unfair – even though the employer had nothing other than circumstantial evidence to go on in denying that it was aware that such an issue existed…

The facts

The Applicant was employed by Suncorp as a claims officer for approximately four years, on a full time basis.  He had been the subject of four performance management action plans over a two year period and was dismissed in August 2014 due to persistent underperformance, unsatisfactory conduct and high levels of absenteeism.

In his case for unfair dismissal, the Applicant claimed that Suncorp failed to take his mental health issues into account when considering dismissal.

Suncorp claimed in its defence that it had not been provided with any documentary evidence about the nature of his medical condition or any limits it may have posed to his performance, and indeed that the employee had not in fact ever raised these issues as an explanation for his unsatisfactory work performance until his termination meeting despite the longstanding performance processes that had been run up until that point.

Fair Work Commission – decision of DP Asbury

While DP Asbury was satisfied that there was a valid reason for termination of employment in the form of poor performance, she nevertheless found the dismissal to be unfair on the basis that

  1. Suncorp failed to consider the Applicant’s mental health issues, which should have been “reasonably obvious” – insofar as the employee had previously requested a reduced working week during his employment, sent emails to his supervisor and senior manager containing comments about the deterioration of his mental health during the performance processes, and was absent from work for 23% of his ordinary working hours; and
  2. Suncorp failed to take into consideration whether those issues impacted his work performance.

The Applicant was awarded $8,400 in compensation.

What does this mean for employers?

As many of you are aware, last year we were part of a national seminar series with the Australian School of Applied Management and Beyond Blue on mental health issues in the workplace – and there is no doubt for us that it is the biggest contemporary employment issue which many people are trying to grapple with.

So is the decision itself correct? For what it is worth, we have no idea as to whether the decision is going to be appealed or not, but we have always had the same view and think that it is undeniably correct – the concept of constructive notice is well-established in the law, it would be difficult on appeal to establish that the findings of fact were not open to the Deputy President unless the decision itself is an erroneous statement of the facts, and there is only the broadest possible remit available to the Fair Work Commission to consider “any relevant matters” as part of its decision.

As such this decision is for us one of the most significant decisions this year, with this obvious implications for employers that:

  • there are many signs and symptoms which even to the untrained eye should be putting our managers on notice of potential issues (whether they be related to mental health or not) – and these have now been recognised by the Commission;
  • if we can, we need to get better at identifying, even on a non expert basis, the potential signs and symptoms of mental illness;
  • whether we have that training or expertise or not, we think that irrespective of this decision we should have the conviction in any event having regard to our duty of care to always be checking-in with our people to ask them if they are ok (including encouraging people to self-report and to support them when they do so);
  • even where people won’t self-report, again having regard to our duty of care you are in our view perfectly entitled to ask people for their consent to speak to their doctor or to direct them to an independent medical assessment so that we can properly assess and where necessary accommodate any work restrictions or supports; and
  • where we fail to do so, the Commission is certainly prepared to find that it can be reasonably apparent and as a consequence also be willing to impose legal consequences on those who fail to do so (and particularly so for larger corporates with more significant HR organisations to support them).

As such, while we understand that mental health can be the hardest of all things to deal with (and indeed that there are plenty who game the system as well), there are plenty of resources now out there about it and it is clear that even the jurisprudence is now moving to demand a best-practise response to mental health in the workplace.

We hope that helps – if you ever want to think through some strategies with dealing with particularly problematic employees, in our view it is absolutely critical to do so in the front end so if we can help at all please do give us a call!

Chris Gianatti

Chris Gianatti Director

Chris worked for a number of years with Corrs before moving in-house to Telstra as HR Legal Counsel for the “Factory” (covering Telstra’s back of house operations including the field... Read More