Managing long-term absences arising from mental illness and psychosocial injury can present significant challenges for employers, particularly where an employee’s capacity for work remains uncertain.

A recent Fair Work Commission (“FWC”) decision involving the dismissal of an employee who had been absent for an extended period due to a mental illness provides valuable guidance for employers navigating this complex situation.

Background

The employee worked in a full-time administrative role and within a few weeks his manager noticed issues with his performance. The employee then disclosed an ADHD diagnosis as a contributing factor to his performance. In response, the employer introduced support measures, including flexible hours and hybrid work arrangements.

Several months later, the employee commenced working reduced days due to a non-work-related accident. The employee claimed that during this time his workload was not adjusted to accommodate the reduced working days and raised bullying and psychological safety complaints, and lodged a workers’ compensation claim for a psychological injury. An investigation was conducted which did not substantiate the employee’s claims. However, the employee informed the employer that he would not return to work until he felt it was safe to do so.

Medical certificates stated that the employee could only work two hours per day, two days per week, in a “non-stressful” role. These restrictions remained in place for around six months.

Despite repeated requests, the employee declined to provide further medical information. After unsuccessfully attempting to assess his capacity and identify suitable adjustments, the employer followed its Long Term Illness and Injury Procedure (the “Procedure”), which resulted in termination of the employee’s employment on the basis he could not perform the inherent requirements of the role.

The FWC’s decision

The FWC accepted that the employee could not perform the inherent requirements of his role within the restricted capacity of four hours per week, found that there was no evidence that his capacity would improve in the foreseeable future, and was satisfied that the Procedure had been followed. The FWC found the dismissal was not unfair and upheld the employer’s reasoning for terminating employment.

In coming to this conclusion, the FWC noted that the employee “did not help himself through his persistent and inexplicable failure to provide requested medical and capacity information” and also stated that the employee had the opportunity to provide further medical information “on at least 10 occasions, all of which requests and opportunities were rejected by the Applicant. It is difficult to envisage a situation where an employee could have been less co-operative”.

The decision confirms that while employers have obligations to support workers experiencing mental health conditions and psychosocial injuries, and consider reasonable adjustments, employees also have responsibilities. In particular, employees must engage in the process and provide sufficient medical information to assist employers in assessing capacity, considering adjustments and facilitating a return to work where possible.

Key takeaways for employers

This is a significant decision because it confirms that employers may make decisions regarding termination of employment even where complete medical information is not available. Employers are not required to operate in a space of uncertainty. In this case, despite the limited medical evidence regarding the employee’s condition, the employer was justified in terminating the employee’s employment.

The decision is also important because it demonstrates that, while employers may terminate employment where an employee is unable to perform the inherent requirements of their role, employees likewise have an obligation to provide relevant information and engage constructively in the process. It is a shared responsibility, and successful outcomes depend on both employers meeting their legal obligations and employees actively engaging in the return-to-work process.