Recently a worker with known mental health issues was dismissed and Fair Work found this to constitute unfair dismissal. The applicant, filed for unfair dismissal Victoria and we have shared some of the details surrounding this case below.
Full Redundancy Privileges Awarded
After the Fair Work Commission discovered he was unfairly dismissed, a previous worker of a construction and engineering firm, John Holland, has been honoured payment and full redundancy privileges.
The Fair Work Case
In a case that features the significance of employment policies to support workers’ mental well-being, Fair Work discovered John Holland knows that the worker was experiencing severe mental health issues and should have been more careful when tending to his case.
Ronaldo Salazar was a licensed aircraft mechanical engineer in John Holland Aviation Services in Melbourne. He was terminated at work in December 2013 for questionable misbehaviour. This arise during the continuing conflicts regarding his work records and emails, in which he believes John Holland management was trying to threaten him and his family.
But Fair Work favoured Salazar and discovered it was not reasonable for John Holland to judge the employee for misbehaving when sending intimidatory message, as the company had documentations of his ailment and medication regimen as stated on his medical certificates.
Compensation in Lieu of Reinstatement
Commissioner Ryan found Salazar’s defence of his condition gave a solid explanation to justify his behavior and John Holland should have given more attention to this and his poor English abilities when managing him.
The Commissioner ordered compensation be paid to Salazar as John Holland is no longer operating this division of its business and therefore reinstatement would not be possible.
A Word from Workplace Legal Counsellor Peter Vitale
Workplace legal counsellor Peter Vitale portrays the case as “phenomenal” as Fair Work discovered “behavior which may customarily couldn’t be dealt that way by the employer on the grounds that the worker had engaged in that conduct while experiencing an emotional instability”.
While Vitale says there are different variables which impacted Fair Work’s decision, including some perplexity between Salazar and John Holland about his capabilities. He says the recommendation a management is not qualified to depend on the debilitating email as genuine misbehaviour “runs counter to the kind of methodology taken by the High Court in connection to anti-discrimination laws in the Purvis case”.
The Purvis case included a teenager who was dislodged from his school on the premise of disturbing conduct that was because of a medicinal condition. The student asserted he was discriminated because of his ailment. Notwithstanding, the school contended it was not discrimination in light of the fact that any other person acting similarly would have been dealt with in the same way. The High Court concurred and said the student’s conduct ought to be dealt with in the same way as the conduct of students who don’t experience any ailment.
Vitale says there are parallels with the Salazar case.
“It may be that in the circumstances of an unfair dismissal case, the company should have paid more respect to the state of the workers’ well being. Yet it would not be right to see this decision as a blanket endorsement for the proposition that conduct engaged in while enduring mental health problems should be totally dismissed for potential wrongdoing by any employer,” he says.
Nonetheless, Vitale says this case highlights the imperativeness of setting a worker’s conduct in context.
“In the challenge of the unfair dismissal regime in regards to a fair go all round, it is unnecessary on an employer to assess the nature of the behavior and the degree to which it may be impacted by medical condition, and work with the employee and therapeutic experts to figure out if or not it is possible to happen once more,” says Vitale.
What should you do if you have been dismissed due to mental health issues?
If your employer has discriminated against your due to know mental health issues and you have been treated unfairly or unfairly dismissed, you may have a case. You may be entitled to filing general protections claim or an unfair dismissal claim depending on the circumstances. Just remember you only have 21 days to file an application for unfair dismissal from the date of termination, so act quick.
We expert non lawyers specialised in supporting employees with mental health issues file a claim against their employer with the Fair Work Commission. Contact our team today and let’s get started on your application.
Resources & Guides for Employees
- Unfair Dismissal Victoria – Find everything you need to know about Unfair Dismissal in Victoria.
- General Protections Victoria – When it comes to General Protections this is your definitive guide.
- Workplace Advice Victoria – Offering leading advice, take a look at how we support employees.
- Constructive Dismissal Victoria – Forced to resign? Have you fallen victim to constructive dismissal and/or constructive bullying?
