The prevalence of mental health issues and its impact on individuals and the workplace is now well-known and accepted by employers. Around 45% of Australians between 16-85 experience a mental health condition at some point in their lifetime. In a given 12-month period, one in 5 Australians will have experienced a mental health condition.
With this growing awareness has come an expectation – underpinned by legislative obligations – that employers will identify and take proactive steps to improve workplace mental health and support employees who are experiencing mental illness.
Balancing OH&S and anti-discrimination obligations
Health and safety legislation requires persons conducting a business or undertaking to ensure that the workplace is, as far as is reasonably practicable, safe for workers and the public. This includes ensuring that the working environment does not create or exacerbate mental health issues.
The federal Disability Discrimination Act 1992, as well as state/territory anti-discrimination legislation, makes it unlawful to discriminate against workers on the grounds of disability. The definition of disability includes actual or presumed mental health conditions. A failure to make reasonable adjustments for workers with mental health issues may also constitute unlawful discrimination.
Extensive resources are becoming available to assist employers with managing mental health issues in the workplace, but a recent NSW Civil and Administrative Tribunal decision highlights some of the practical difficulties for employers seeking to balance their often competing legislative obligations. The decision also serves as a reminder of the dangers of making assumptions about an employee’s mental health based on reports of their behaviour.
“Assumed disability” discrimination: Stefanac v Dept of Family and Community Services
- Ms Stefanac was employed as a child protection worker with the NSW Department of Family and Community Services (Department).
- A manager became genuinely concerned about Ms Stefanac’s state of mind following reports of “animated” conversations Ms Stefanac had had with her co-workers during which she allegedly said that she was “into conspiracy theories” including that:“there is a ‘large Hadron Collider’ and in Scandinavia it was switched on the other day resulting in shutting down the atmosphere”
“there is a government conspiracy to hide this information from us”
“fallen angels… are walking around on earth and are here to make us confused”
“Have you heard about the meteorite that is going to hit the earth in November? It’s a big conspiracy, it will hit the earth and all the world leaders know about it.”
- On 2 June 2016, Ms Stefanac was directed to go on sick leave (later converted to special leave) with immediate effect until she could provide a medical certificate stating that she was fit to perform her duties which included assessing the safety, welfare and well-being of children (Direction). Ms Stefanac’s GP subsequently certified that she was fit to resume her usual duties and she returned to work on 25 July 2016.
- Ms Stefanac made a discrimination complaint under the Anti-Discrimination Act 1977 (NSW) (ADA) alleging that in issuing the Direction the Department had directly discriminated against her on the ground of an assumed mental illness by subjecting her to a detriment.
- The ADA defines disability to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.” It is further defined to include a disability “that a person is thought to have (whether or not the person in fact has the disability).”
- Ms Stefanac admitted to having the conversations but denied making some of the specific statements attributed to her. The Tribunal largely preferred the evidence of her co-workers.
- The Department had subjected Ms Stefanac to a detriment as the Direction was a substantial disadvantage that resulted in injury to her feelings. There is no need to prove financial loss.
- The Department assumed Ms Stefanac had a mental illness but, based on her GP’s evidence which was unchallenged, the discussion of conspiracy theories was not symptomatic of any mental illness ie the Department’s assumption was incorrect.
- As to the ‘differential treatment’ element, the Department submitted that the relevant comparator is a hypothetical child protection caseworker who did not suffer from the same (assumed) disability and, if that caseworker had had the same conversations, it would have given that employee the same direction.
- The Tribunal stated “that reasoning is not logical when the disability is an assumed mental illness” and “it does not make sense to compare the way [the Department] treated Ms Stefanac with the way [it] would have treated a person it did not think had a disability” as “inevitably [the Department] would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.”
- The Tribunal stated that the problem in this case is with the way the differential treatment test is drafted and, where the disability is an assumed disability and the person does not actually have that disability, the differential treatment element of direct discrimination does not reveal the true basis for the direction.
- The Tribunal went on to consider whether “causation” had been established, finding that:
- At least one reason for the Direction was Ms Stefanac’s assumed mental illness.
- The “inherent requirements” defence was not available as it only applies to decisions about who should be offered employment and who should be dismissed, not other detriments. The Department did not seek to rely on the defence that the Direction was necessary to comply with a requirement under health and safety legislation and/or the legislation governing the Department’s child protection responsibilities.
- Ms Stefanac’s complaint that the Direction constituted unlawful discrimination on the ground of assumed mental illness was substantiated.
The Department was ordered to pay $20,000 for ‘pain and suffering’ but was not required to apologise or transfer Ms Stefanac to another office as she had requested.
Implications and guidance for employers
- One the face of it, this decision suggests that employers are exposed to claims of unlawful discrimination when taking steps (without the employee’s consent) to manage situations where the employee displays behaviour which may be symptomatic of a mental illness. For example, directing employees to attend an independent medical examination, changing an employee’s responsibilities to reduce stress levels etc.
- To manage the risk of a successful discrimination claim, we recommend that employers:
- avoid making assumptions about an employee’s mental health based purely on their behaviour and in the absence of medical evidence;
- ensure, if you have concerns about whether an employee is fit to perform their role, that any directions issued are reasonable and consistent with your legislative obligations; and
- provide managers and supervisors with training in how to identify signs of a potential mental health issue, what they should (and should not) do if they are concerned and how they should manage requests for reasonable workplace adjustments.
If you would like advice or assistance with managing employees with actual or potential mental health issues, please contact a member of our Workplace Relations team.
 ABS, 2007 National Survey of Mental Health and Wellbeing: Summary of Results, Table 1, 23 October 2008, available
http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/6AE6DA447F985FC2CA2574EA00122BD6/$File/43260_2007.pdf, accessed 12 August, 2013.
 Which includes current and prospective employees, agency workers / labour hire and independent contractors.
 See for example www.headsup.org.au
 Stefanac v Secretary, Department of Family and Community Services  NSWCATAD 106