By Charles Power

Anti-discrimination legislation protects employees from discrimination on grounds of disability, including mental illness. For example, NSW anti-discrimination legislation provides remedies to an employee who is discriminated against by their employer because the employee has a disorder, illness or disease that affects their thought processes, perception of reality, emotions or judgment, or that results in disturbed behaviour.

Even if the employee does not have mental illness, they can complain of unlawful discrimination if they are subject to discrimination by their employer because the employer thought the employee was mentally ill.

Discrimination on grounds of mental illness, or assumed mental illness, occurs where the employer on that ground, treats the employee less favourably than in the same circumstances, or in circumstances which are not materially different, the employer treats or would treat a person who does not have that illness.

In other words, to constitute direct discrimination on grounds of mental illness, the complainant must show that he or she was treated less favourably than the employer would have treated a person who it did not think had a mental illness.

In Stefanac v Secretary, Department of Family and Community Services (2018) an NSW public servant complained of discrimination when she was directed to go on sick leave until she could provide a medical certificate stating that she was fit to perform her duties as a child protection caseworker.

One of the reasons for making the direction was that a manager was genuinely concerned as to her state of mind. Those concerns arose from conversations the employee had with two co-workers, during which the employee talked animatedly about various conspiracy theories.

During one conversation, the co-worker said the employee stated she was ‘into’ conspiracy theories and stated that she believed the Pope of the Catholic Church is a Jesuit, there is a planet coming close to earth and it will cause a polar shift, there is ‘a Large Hadron Collider’ and in Scandinavia it was switched on the other day resulting in shutting down the atmosphere, there is a government conspiracy to hide this information from us, some people question whether the earth is flat and aliens are fallen angels kicked out of heaven.

When these conversations were reported to the employee’s manager, the manager sent an email issuing the direction to go on sick leave until a doctor certified her fit to return to work.  The employee’s GP did certify her fit to resume normal duties and she did so.

However, the employee made a complaint under NSW anti-discrimination law that, by issuing the direction to go on sick leave, her employer had discriminated against her on the ground of an assumed mental illness.

The employer argued it had simply treated the employee the same as any employee who had made similar remarks or comments, regardless of any concerns about the person’s mental health.

The Tribunal ruled that directing a person to leave work on sick leave and not to return until a medical clearance has been given, constitutes a substantial disadvantage, even though it did not lead to any loss of pay.

The Tribunal rejected the argument that the employee was treated the same way as an employee who made similar remarks or comments who the employer did not think had a mental illness.

The complainant was awarded $20,000 compensation for being directly discriminated against on the ground of assumed mental illness. The Tribunal observed that directing an employee to leave work immediately and not to return until cleared by a doctor as mentally fit is an extreme action to take.