By Charles Power

If you are considering dismissing an employee for unsatisfactory work performance or unacceptable conduct and it is clear that the employee’s poor mental health is a contributing factor, you need to take these issues into account.

If you don’t, the employee may have good grounds to challenge the dismissal in an unfair dismissal proceeding, as this recent case illustrated.

In Salazar v John Holland Pty Ltd (2014), Commissioner Ryan of the Fair Work Commission (FWC) dealt with an unfair dismissal claim made by a licensed aircraft mechanical engineer (LAME).

On 23 December 2013, the employee was dismissed for serious misconduct for, among other things:

• disobeying a direction to change his work group; and
• issuing “alarming, incorrect and threatening” correspondence to the Civil Aviation Safety Authority (CASA) about the business and its managers.

The employee suffered from severe stress disorders and depression, and was taking medication and receiving psychiatric treatment. The employee’s mental health issues were known to the employer and were found to be a contributing factor to the alleged misconduct.

The FWC observed that, as a supplier of aircraft maintenance services, the employer must have complete trust and confidence in its LAME employees. Any ripple on the surface of the employment relationship may destroy its viability.

As Commissioner Ryan observed, “The mental health issues of the employee were more than a ripple on the surface of the employment relationship; they were significant waves!”

The FWC considered that, before allowing the employee to perform any LAME function, the employer should have:

• suspended all authorisations of the employee; and
• required him to produce an unrestricted certificate of capacity.

The employer and CASA should also have required the employee to undergo appropriate training before he was given any authorisations to undertake LAME work.

The FWC found that the employer did not accept that the employee’s actions were influenced by his mental health issues or, alternatively, believed that the mental health issues were feigned.

Further, the evidence showed the employee’s health was improving. As Commissioner Ryan stated, “Whilst there were waves on the surface of the employment relationship they were being addressed by the Applicant’s mental health practitioners. The waves were short lived and by early December 2013 there was not even a ripple on the surface of the employment relationship that could be attributed to the Applicant.”

The FWC ruled that the employer’s refusal to take into account the employee’s medical condition and treatment rendered the reasons for dismissal unsound and ill-founded. Therefore, dismissal for the misconduct was harsh, unjust or unreasonable.