Employers should take particular care in dealing with employees with depression.  An Accounting firm has been fined for discriminating against an employee that told the firm that she had depression.  The firm excluded the employee from staff training sessions, denied her a support person in performance reviews and terminated her employment.

Facts

In January 2010 an employee of Bush and Campbell (“the Firm”), located in Wagga Wagga NSW, advised the Firm that she had been diagnosed with depression.  The employee exercised her workplace right under s 341(1)(a) of the Fair Work Act to request the following reasonable adjustments to her working conditions:

• Cease working under a specific member of staff and instead work under two Partners specified by the employee;
• Be afforded an external support person (namely her husband) at performance review meetings; and
• Be provided with support and guidance when allocated with work more complex than what she would ordinarily perform.

Although the Firm originally told the employee that she should return to work while they considered the proposed adjustments, the next day they changed their position.  The Firm advised the employee, first that she should not return to work and second that they would review the proposed adjustments the following week at the quarterly Partner’s meeting.  Following the meeting, the Firm told the employee that they did not require her services for the remainder of the financial year and that her request for a support person was denied.  The employee was subsequently left out of staff training sessions, the likes of which were within the scope of her employment to be included.  The employee was officially terminated three months later.

Contravention of the Fair Work Act

The Firm was found to have contravened the Fair Work Act (FWA) by taking adverse action against the employee because of her mental disability and exercise of a workplace right in the following ways:

• Dismissing the employee;
• Injuring the employee by refusing to grant her an external support person; and
• Discriminating between the employee and other employees by denying her participation in the staff training sessions due to it already having been determined that she would be dismissed.

Enforceable Undertaking

The Firm entered into an Enforceable Undertaking with the Fair Work Ombudsman (FWO) on 5 November 2012 admitting to the above breaches and committing to better recognition of workplace rights in the future.  The following penalties and measures have been imposed by the FWO:

1. The Firm must give the employee an apology;
2. The Firm must pay $17,805 as compensation for financial and emotional harm suffered as a result of the dismissal;
3. Notification of the breach must be given to all employees, posted in the Firm’s office and published in the local newspaper; and
4. Over the next two years, the Firm must invest at least $6,000 into training sessions for the Directors on workplace relations and responsibilities under the FWA focusing on discrimination and termination of employment.

Click here to read the Enforceable Undertaking

http://www.fairwork.gov.au/enforceableundertakings/Bush-Campbell-EU.pdf

Significance

This case serves as a reminder to employers of the need to be fully informed about the statutory obligations owed to employees before making a decision to dismiss or change the position of the employee.  If the Firm had investigated their employee’s right to reasonable adjustments in working conditions under the Disability Discrimination Act 1992 (Cth) prior to her dismissal, they may have saved themselves unnecessary embarrassment and legal fees. 

In short, if you know that an employee has a disability, such as depression, or a bad back, and requests that you may allowance for it, such as a relocation or light duties, be sure to check your legal obligations in responding to that request, and also be sure that you do not demote, take away perks or terminate without ensuring that you have documentary evidence that will persuade a tribunal or court that the adverse action is for legitimate business reasons and cannot be attributed to the disability.