Employment Law: Lessons from FGH v RST

The challenges of managing performance when the employee has health issues

Performance management of underperforming employees is a sensitive but necessary aspect of employee management that HR professionals will be well acquainted with. However, managing performance where the employee has health issues can be difficult, particularly where the health issues may be exacerbated by the performance improvement process. The employer must balance its ability to manage the employee’s performance with their obligations to provide a safe and healthy workplace.

The Employment Court case of FGH v RST is demonstrative of these difficulties. The case concerned Ms H, an employee of a government organisation who was subject to an informal and then formal performance management process. When she did not meet the expectations of the plan, a disciplinary process was commenced against her. A month later, an additional disciplinary process was commenced for inappropriate language Ms H used towards a manager.

Ms H suffered from several mental health disorders, including ADD and an anxiety disorder, which she disclosed to her employer during the performance improvement process. At the commencement of the second disciplinary process, she became so ill she could not attend work for several weeks.

Ms H raised a disadvantage grievance asserting that her employer failed to provide a safe and healthy workplace while managing her performance, on the basis that she was bullied by her managers throughout the process and that insufficient steps were taken to mitigate the risk to Ms H’s health.

An employer’s failure to address bullying in the workplace may give rise to an unjustifiable disadvantage claim as a failure of the duty to provide a safe workplace.

The Employment Court concluded that in this case, Ms H’s bullying claim was not established as the legitimate criticisms were not expressed in an unprofessional or hostile manner.

This suggests that legitimate criticisms, if expressed in a hostile or unprofessional manner or including personal insults, could be bullying. In addition, the court also accepted that unreasonable work demands could constitute bullying.

While the Court found there was no bullying, that was not the end of the analysis as to whether the employer had provided Ms H with a safe and healthy workplace.

The obligation of an employer to take reasonable steps to maintain a safe workplace is an implied term in all employment contracts.

The employer recognised that Ms H’s medical conditions presented a health and safety issue that needed to be managed. Accordingly, once made aware of the medical issues, the employer sought to adjust the process to accommodate Ms H including extending timeframes, providing a summary of discussion points prior to meetings, postponing and reprioritising meetings, allowing her to move desks, allowing an objective participant in meetings as required, offering her EAP and giving her extra breaks to attend the gym.

On that basis, the employer contended that it had taken all reasonably practicable steps to prevent harm to an employee which it foresaw at the time.

What the employer failed to do, however, was to obtain adequate medical advice on the employee’s condition. Ms H had only provided the employer with scant medical information and the employer had only obtained general guidance on ADD from EAP. The Employment Court held that because the process was causing the employee medical distress the employer had the responsibility to seek further medical advice regarding the appropriateness of continuing with the performance process in light of her medical conditions.

The Employment Court noted that the employer did not actively seek a proper medical confirmation as to Ms H’s disability, even though the managers had been observing the manifestation of her condition in her work for months.

Accordingly, despite the measures implemented to accommodate Ms H, the performance management process was seen to have become oppressive in the circumstances as it was entirely foreseeable that she would continue to react adversely if the formal processes were maintained.

The Employment Court was clear that an employer cannot rely on those assisting the employee to provide further medical information of their own volition, rather the employer was obligated to work with the employee to obtain medical advice which was adequate in the circumstances.

This failure of the employer to meet their health and safety obligations, in addition to other procedural flaws, formed the basis of an established disadvantage grievance.

The court also accepted that unreasonable work demands could constitute bullying

This Employment Court decision demonstrates a high threshold for employers in these situations. When managing the performance of an employee with health issues, an employer cannot properly discharge its duties without being actively and adequately informed of the employee’s condition. In addition, all feedback, even if legitimate, must be provided in a reasonable and respectful manner.

Ultimately, HR professionals ought to bear all aspects of the employer’s obligations in mind when conducting a performance management process and should aim to be as informed, impartial and supportive as is reasonably practicable.

Chris Scarrott is a lawyer at Cullen – the Employment Law firm. Chris is focused on providing thorough and solutionsbased advice for both employers and employees.