Competing laws such as anti-discrimination law and work health and safety laws must be balanced and this complexity is exacerbated by the fact that mental illness is not always easily defined or diagnosed – indeed mental health experts find it hard to agree.
So how does business ensure it is legally compliant and most importantly, ensures that it does not cause harm to anyone when it applies disciplinary processes?
Here are six golden rules
1. Policy and process - Ensure your disciplinary processes and policies are correctly designed and have been designed with key issues around mental health taken into account – audit your processes to ensure that they are up-to-date and accommodate all relevant laws.
2. People - Ensure your people know how to validly apply your processes. Well intentioned HR people sometimes talk of “charging” people for policy breaches as if they prosecutors under mainstream criminal laws. This approach inflames some and suppresses others – neither outcome is positive and may put the health of some at risk
3. Challenge bias - Challenge your conscious and unconscious bias. If you are aware that a person suffers from a mental illness question your own conscious and unconscious biases about mental illness. We kid ourselves that we have entered a new era of acceptance. We are merely knocking on the door of that new era. Challenge your readiness to accept the validity of complaints about persons with mental illness by those you are thought to be “a regular person” and ensure you obtain as accurate a statement of the facts as possible, and act on only on facts.
4. Fairness - Apply processes fairly and transparently so. Do not take short cuts.
5. Delay - Do not delay. Applying processes in a timely manner, keep everyone updated and make timely decisions – a little known fact is that delay in occupational discipline law is prominent, a cause of workplace psychological injury and it can exacerbate existing mental illness.
6. Seek help – Until recently, mental illness was not discussed at work and people were not encouraged to disclose their illness because of the stigma that attached (and some say, still attaches). Most of us make significant mistakes when we insist we know what we are doing when we do not. In truth, all of us are novices when managing issues related to mental illness in the workplace – seek help rather than cause harm and/or break the law.
Key cases and important lessons
Salazar v John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd  FWC 4030 demonstrated the importance of ensuring that any alleged misconduct is not caused by or related to the employee’s mental illness. The fact that the alleged misconduct was the result or manifestation of an employee’s mental illness may provide a defence with respect to the alleged misconduct (or is otherwise a mitigating factor in determining the appropriate action to be taken).
HR managers need to take care when dismissing an employee for ‘misconduct’ in circumstances where the impugned conduct may derive from or be related to a mental illness. The cases make it clear managers should determine if an employee can safely perform the ‘inherent requirements’ of a role if reasonable adjustments can be made and employees must be managed from a work health and safety perspective rather than a strict disciplinary perspective. These issues were explored in Vernham v Jayco Corporation Pty Ltd  FWC 8185; State of Victoria (Office of Public Prosecutions) v Grant  FCAFC 184; Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology)  FMCA 1052; and Gibbons v Commonwealth of Australia & Ors  FMCA.
Equally, there may be times where reasonable adjustments cannot be made to accommodate a person’s mental illness for variety of reasons, including that the health and safety of others is put at risk. It is safe to say however, that for the most part, persons suffering mental illness have suffered most in the workplace to date. They have fallen into the category of persons who “do not fit in” and have been bullied and treated unfairly accordingly. Workplace law is evolving to require all of us to accept a broader concept of what is acceptable in terms of diversity (race, gender and disability) and it is penalising behaviours that were described in the days of “Mad Men” as “having a bit of fun” or “larrikinism”. Some of these terms translate in fact to bullying, racism and sexism, all of which are unlawful in the workplace.
Siobhan Flores-Walsh, Partner Corrs, Chambers Westgarth
Marie Costa, Senior Associate Corrs, Chambers Westgarth
The application of workplace disciplinary law to a worker who suffers from mental illness, or may suffer from mental illness is complex.