Adverse action: mental illness & work performance

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184


Before: Tracey, Buchanan & White JJ
Decision: Appeal allowed






Brief Overview:

INDUSTRIAL LAW – appeal from Federal Circuit Court – whether trial judge erred in finding employee’s mental disability was the reason for the termination of his employment – whether employee’s conduct was interwoven with his medical condition – consideration of the principles enunciated in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41

The respondent was employed as a solicitor by the appellant at the Victorian Office of Public Prosecutions (VOPP) and performed well in his employment.  Three years later, after a non-related work accident, the respondent was left with a severely fractured leg and series of complications associated with his injury, which resulted in the respondent taking time off work and demise in his work performance.

The respondent’s supervisor arranged a series of meetings over a period of time to discuss the respondent’s absences and punctuality at work.  It soon became apparent that the respondent’s mental health was deteriorating and the respondent was given some leave from work.  In early 2012, the respondent commenced a course of anti-depressants and experienced insomnia which further impacted on his work performance and tardiness.  Shortly afterwards he was diagnosed with depression.

The appellant contacted and communicated with the respondent’s medical specialists in order to gain further insight into his condition and how to best handle the situation. In August 2012, the respondent employment was terminated.  The respondent commenced proceedings in the Federal Circuit Court alleging the appellant had taken adverse action against him because of his mental illness.

The Full Bench of the Federal Court overturned the trial decision which found the employer had taken adverse action against the respondent (because of the employee’s mental illness/disability).  The Full Bench of the Federal Court found that the medical evidence did not directly link all the employee’s misconduct with his mental illness and the employer’s dismissal of the respondent was not for a prohibited reason. The Full Bench of the Federal Court found it was possible to disentangle the reasons of the employer from the mental illness and applying the High Court decision in Barclay there was evidence from the employer about the actual reasons for the dismissal other than the mental illness.

David Cormack – Brisbane Barrister & Mediator











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