Out of character behaviour cost this employee his job. FWC acknowledges mental health concerns but says there’s not enough evidence to reinstate.

If an employee with a previously clean record suddenly started acting out, how would you respond? You might assume external forces were at play. Perhaps things aren’t going well at home or they are suffering from poor mental health. What you (hopefully) wouldn’t do, is ask them if they were doing drugs.

A sales assistant of a refrigeration servicing company Beijer Ref Australia Pty Ltd was dismissed in March this year after nearly eight years in the job. It’s alleged he was acting in a threatening and sexual manner at work as well as damaging and stealing company property. 

The employee had disclosed that he was experiencing mental health concerns but wasn’t able to provide details or evidence around his prognosis. This meant the Fair Work Commission backed the dismissal of the employee – acknowledging that the employer was only able to act on the information at hand – but said that more could have been done to support the employee during a vulnerable time.

What went down

The employee was hired in 2011 and received a promotion to business development manager in 2015. However, after a series of unexplained absences from work in October 2018 – February 2019, he was placed in a part-time role as a counter sales assistant. The employee felt this was a “demeaning” demotion.

For the majority of his tenure, the employee had no performance issues. Things only started heading south in October last year when he was reprimanded for misuse of the company credit card. His employer says even after the warning that he continued to use the company card during personal leave as well on a period of “unauthorised leave”, that he was consistently late in providing receipts, and that he had made unauthorised payments. 

Commissioner Peter Hampton said there wasn’t enough “direct evidence” to prove that Beijer had provided written parameters for the use of the company card, which made it hard to convince the Commission this was a deliberate act of misconduct. However he felt “it is clear that such expenditure was not expressly authorised and I do find that [the employee] was recklessly indifferent to that issue.”

The employee had just broken up with his partner at this stage, which could have explained his behaviour, and he was placed on a performance improvement plan. Following these incidences his manager started to notice more erratic changes in his behaviour. He said the employee had an “aggressive demeanour and [was] becoming easily agitated” and further claimed he had started excessively swearing and driving erratically.

In an informal setting, the manager asked the employee if he was taking drugs – which might have explained his out of character behaviour, but was obviously not the best conclusion to jump to.

The employee disclosed that he was currently taking Valium, had smoked marijuana as a teenager and disclosed that he’d been hospitalised for mental health reasons the previous week.

After this conversation with his manager, the employee exhibited more odd behaviour. He told his manager that his company laptop had been stolen, but did not report this to the police after being asked to. When recounting the details around how the laptop was stolen, the employee’s story was inconsistent. Adding to the suspicion, he just that morning had emailed the manager expressing financial concerns and asking when he was going to be paid.

With this information in mind, the employer accused him of stealing the laptop.

The employee was further accused of purposefully damaging a company phone, being drunk in the workplace and being inconsistent with providing a medical certificate for time off work.

The employee’s behaviour came to a head on the 28th of February 2019, where it’s alleged he:

• Called his manager and said “You’re dead, c**t”.
• Told a male colleague “when I’m bored, I masturbate” and called him a “f***king c***head”.
• Told clients that he didn’t have enough money and said: “The way to make lots of money is to sell drugs.”
• Said, “I’ve used up 500 hours of sick leave and I got away with it” openly in the workplace.
• Stopped doing his duties and walked around the workplace “punching [his] fist, while singing very loudly and aggressively, with an intention to disrupt, provoke and agitate other staff.”
• Intentionally left pools of water in the showroom and tipped over full buckets of mop water when he was asked to clean the area.

The company argued “these actions were variously unprofessional, disrespectful aggressive, misleading, capable of bringing the company into disrepute, a breach of his employment contract and in one case, sexual harassment.” The employee denied the allegations, but Commissioner Hampton was largely satisfied with the employer’s records.

During the trial, the employee wasn’t professionally represented, his father stood in as his representative and based his evidence around statements provided to him by the employee, to which Commissioner Hampton gave little weight.

Did the best with the information they had

The employee believed Beijer failed to meet its workplace health and safety obligations after learning of his mental health condition when he returned to work. He said the employer relied on false and misleading evidence, denied him procedural fairness and treated him in a “demeaning manner on his return to work, which set the context for the limited conduct that did occur on the day in question – 28 February 2019.”

Commissioner Hampton denied these claims. While he acknowledged that the employee’s mental health played a crucial role in his behaviour, he said the employer was acting to the best of their ability with the little information they had been provided about the employee’s medical condition and prognosis. In fact, the employer was only provided with written confirmation of the employee’s September 2018 hospitalisation during the recent June hearing.

“Given the early indications that the employee’s circumstances were the product of his personal domestic situation, and the refusal to provide access to more detailed information about the medical condition, any criticism of the employer’s approach to this aspect must be muted and seen in that context,” says Hampton.

During proceedings, the employee said he didn’t disclose the details of his mental health as he was worried it would damage his employment prospects.

“I accept that this is a concern genuinely-held in the community and that as a society we do not always handle mental health challenges well. I would also accept that in some respects, Beijer could have handled the early signs of the employee’s behavioural changes differently and provided some additional support.

“Further, given the extent of the absences and the relatively long periods without medical certificates being provided, Beijer gave [the employee] considerable latitude and did not further escalate its conduct concerns until [he] was given a medical clearance to return to the workplace.”

Taking into account the employee’s behaviour and his personal situation (financial hardship, mental health issues and a relationship breakdown), it’s clear that he was acting out of line, but perhaps he was unable to do otherwise. So, while Commissioner Hampton says Beijer’s approach shouldn’t be held under a microscope, it’s a reminder to all organisations to think carefully about their approach to mental health in the workplace. A sudden and dramatic change in a worker’s behaviour is worth investigating as a potential medical issue.