The increased incidence of workplace mental health issues is undeniable, and the outcome is a minefield for employers to navigate.

Regardless of whether the spike in workplace mental health issues arises from an increase in diagnoses, preparedness of employees to discuss these issues, or – indeed – an increased incidence because of constant connectivity and work ‘creep’, it can be hard for employers to know how to handle these cases. Never before have we seen as many education campaigns or providers focused on improving workplace mental health and wellbeing, yet things don’t seem to be improving.

Even where an employee’s condition is not caused by or aggravated in the course of the employment, these issues often pose conflicting obligations on employers to balance obligations to:

• protect the health, safety and welfare of the employee and others in the workplace;
• not discriminate against the employee or adversely injure them in their employment as a result of their illness, including making reasonable adjustments that do not pose an unjustifiable hardship on the employer;
• not unlawfully terminate due to the illness or temporary absence from work; and
• not unfairly dismiss an employee in a manner that is harsh, unjust or unreasonable.

An example of how these matters can unfold is the recent case of Vernham v Jayco Corporation Pty Ltd, where an employee claimed he was bullied at work. The claim was denied, but he refused to return to work and then sent emails to his WorkCover case worker threatening to commit suicide and kill Jayco staff. HR then received an anonymous phone call indicating the threats should be taken seriously, after which the applicant was summarily dismissed.

The employee lodged an unfair dismissal claim in which it was conceded there was a valid reason for dismissal, but that there was a causal link between his mental health and the misconduct that should have been treated as a mitigating factor. He argued that by failing to contact him in the period between the time of misconduct and dismissal, he was denied the opportunity to explain his misconduct.

The employer argued there was a real likelihood the employee intended to carry out the threats and it owed a duty of care to other employees to provide a safe work environment regardless of the employee’s deteriorating mental health.

The Commission held the employee was unfairly dismissed because he was not given the opportunity to explain his misconduct, finding there was a causal link between the time he sent the emails and his mental state. It found the employer was at least aware the employee’s “mental state was not good,” was obliged to inquire about it and, if it did, it would have discovered the applicant suffered from post-traumatic stress. Nevertheless, reinstatement was inappropriate in the circumstances and the employee’s compensation was discounted due to the misconduct that contributed toward the dismissal.