THE Fair Work Commission has warned that employee mental health must be taken into account when considering incidents of misconduct after an aviation services firm was found to have unfairly dismissed a worker suffering from mental illness.

Formerly working at the firm’s Tullamarine site in Victoria, an aircraft mechanical engineer was dismissed from his position when his refusal to change work groups escalated into what the firm described as serious misconduct.

Initially, the worker refused to shift from aviation working group ‘Crew A’ to ‘Crew B’ on grounds the change would lead to a negative impact on his family, despite salary and roster rotation remaining unchanged.

The employee also argued he was not qualified to do the mechanical work required by ‘Crew B’, despite the employer insisting he was but modifying his responsibilities as a precautionary measure.

The dispute over the change continued, leading the employee to email the firm’s managing director and forward the contents to the employee’s medical practitioner, union, union legal representative and a government minister.

In the email, the employee alleged his legal rights were being denied by the employer and by ignoring his concerns about his qualifications, the employer ‘risked a repeat of the Asiana Airlines Boeing 777 crash in San Francisco’.

For six months following, the worker was declared unfit for work by a medical professional on grounds of anxiety and depression with psychological or psychiatric therapy prescribed as treatment.

However, citing a breach of trust and confidence in the worker arising from his refusal to move crews, his claims that he wasn’t certified to complete required work, and his widely distributed email, the firm terminated the employment contract.

On hearing the application for unfair dismissal, Commissioner John Ryan found the employer had failed to give due consideration to the worker’s mental condition when investigating the incidents underpinning his dismissal.

“In light of the medical certificates received by the [employer], it appears totally unreasonable for the respondent to come to the conclusion that the applicant engaged in serious misconduct in sending the e-mail in July 2013,” Cmn Ryan said.

“It is neither sound nor defensible to rely upon the conduct of an employee with an obvious mental health problem in drawing a conclusion that the conduct of the employee amounts to serious misconduct.”

On evaluating the breach of trust and confidence Commissioner Ryan rejected the employer’s argument that the worker had failed to make a genuine attempt to rebuild trust.

“The fact that the Applicant had been unfit to work for six months due to an ongoing mental health issue would have prevented the Applicant from doing anything to rebuild the employer’s loss of trust,” he said.

Having ceased its aviation services in Tullamarine, the firm was ordered to pay compensation to the worker, rather than reinstate him to his original position.

To read the decision in full, click here.

Implications for Employers

Navigating disciplinary action and dismissal can be a delicate task for AREEA members, with this recent decision from the Fair Work Commission demonstrating the complexities of some individual cases.

While blanket organisational policies are usually amust for AREEA members, there is merit in addressing incidents of misconduct on a case-by-case basis. Considering all aspects of an individual’s circumstances and their relationship with their employer will ensure any disciplinary action is effective and less subject to disputation.

Preventing incidents which would otherwise warrant disciplinary action is also a proactive approach to misconduct and many employers are finding positive workplace culture to be a significant influence. Mental wellbeing is a particularly hot topic in the resource industry and initiatives that help employees manage their health are gaining popularity.

AREEA is currently working closely with mental health awareness and advocacy organisation beyondblue to develop a tailored program for resource employers to help manage workforce mental wellbeing in the mining, oil and gas sectors.

In the meantime, AREEA members can visit the Heads Up website, launched by beyondblue to profile company success in tackling mental health in the workplace.

For advice and information on all your workplace relations needs, including employee discipline and dismissal, contact your local AREEA office and speak to one of our workplace relations experts.