Employers face significant challenges and risks when seeking to dismiss employees suffering from mental illness.
The Fair Work Commission has found that an employee had been unfairly dismissed from his position on the basis of his mental illness.The employee had undergone psychiatric assessment at the request of the employer, where it was found that he had paranoid schizophrenia and was not getting help or taking medication for the condition. The expert said the employee did not have a current capacity for work and might be disruptive in the workplace. The expert also said the employee would need treatment and a certificate saying he was fit to return to work before he returned.The employee’s employment was terminated based on the psychiatric report.
However, the commission found that the reason for dismissal did not accord with the expert’s opinion. In fact, the commission said the evidence described the employee as not having “a current capacity to return to work”.
While the commission agreed that the employee had been unfairly dismissed and should be reinstated, it did not automatically mean he should immediately return to the workplace.
The employee was required to first produce clearance from both a treating psychologist and a treating psychiatrist that he was fit to return to work
.Management of employees with mental illness is often a vexed issue for employers; a bespoke approach is needed, fashioned to the circumstances of the individual case.