MENTAL ILLNESS: DUTY TO DISCLOSE TO EMPLOYERS

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Most practices will have experienced the difficulties in managing poor performance or behaviour of an employee, which is caused (or contributed) by mental illness. In many cases, the performance management process needs to be adapted to limit the risk of exacerbating the injury due to work, and to maximise the chances of improvement. The time and resources required to manage the process can be significant and even debilitating, especially for small practices or those without legal/HR support. Considering these challenges, early disclosure of illnesses that may impact work is warranted to benefit all parties involved. This article summarises a recent case where an employee’s claim of discrimination and adverse action was dismissed due to failing to disclose the illness to the employer prior to commencement.

Facts

The employee was terminated for aggressive workplace behaviour, which he challenged on the basis it was caused by a mental health illness and autism diagnosis. The employer argued the employee should have disclosed his mental health issues and autism diagnosis to the employer prior to signing his employment contract. The employee filed a complaint seeking reinstatement of employment with an increase in salary, back pay, and compensation.

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Law

The employee complained the termination was adverse action under the Fair Work Act. The employee alleged that the employer had discriminated against him because he had autism. The Fair Work Act states that an employer cannot treat an employee adversely (through action or inaction) due to a disability, although there is an exception where the disability/illness prevents the employee from performing the inherent requirements of the role.

Under the Fair Work Act, the court considered if the employer intentionally terminated the employee due to the illness; whether the termination actually occurred; the reasoning behind the employer’s decision to terminate; and whether all the available and relevant information supports the complaint.

Decision

The court decided that there was no evidence to indicate that the employee notified his employer that there had been a change in his fitness for work. The employee’s contract stipulated a duty to notify the employer of mental health conditions. The applicant argued that his mental illness would have been noticeable at work, so the employer had notice of his disability.

The court found that the employee failed to disclose his mental health illness contrary to his contract. The court also reasoned that no link could be established between the employee’s mental disability and the dismissal, thereby dismissing the complaint.

Implications for your Practice

As an employer, it is very important to include a clause in your contracts to the effect that employees are required to disclose without delay, any illnesses (mental or physical) which may impact work. If you do not have such a clause, an employee would likely be successful in a complaint under similar circumstances. Additionally, knowledge of your employee’s health will inform you on his/her ability to meet the requirements of the role prior to commencing an employment relationship, or allow you to manage the risks early on, if it arises during employment. Early knowledge and disclosure would therefore benefit all parties involved.

This article is produced by an external third party (not the ASO) for guidance purpose only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please email info@clinlegal.com.au.