Try managing Mental Health rather than exiting it

In a recent case the Federal Circuit Court ordered an employer pay an ex-employee$5,940.00 plus costs for engaging in adverse action by offering an employee a reduced role at work because the employee was suffering from a mental disability.

The details of the case were; an employee returned to work after a week off with a medical certificate stating it was due to an anxiety related condition.  Following that the employee requested further time off due to the anxiety.  On return to work the second time the employer requested the employee attend the company doctor who deemed the employee fit for work.  On the Company Doctor’s findings, the employer determined the employee could not sustain the level of performance in her current role and therefore gave the employee 3 options to choose between before the close of business that day:  1. perform a receptionist type role with reduced salary; 2. move to an executive role with increased workload; or 3. resign.   The employee complained to the company about feeling bullied and being forced into resigning.  The employee sought an extra month of leave with a medical certificate due to the additional stress placed on her with the situation created by the company.  The employee returned to work again and was informed her position had been made redundant due to a restructure and she was not considered a suitable candidate for the new position.

It was found that the restructure was in fact genuine however noted that the employer’s attempt to alter the employee’s employment was because she was unwell.  Also, by forcing the employee to choose between 3 options, the employer had breached the Fair Work Act and had taken adverse action.

Therefore, it is not just a matter of treading carefully in a matter such as this, as this should be done in all situations, but fully understand the business risks and the impact on employees that remain in the workplace.  This may mean getting external advice to fully understand the situation to then be able to make decisions.

Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804 (20 April 2015)