Mentally Ill Employees’ Workplace Behaviour – The OSH Obligations
By: Minter EllisonProvided by World Services Group
Mentally Ill Employees’ Workplace Behaviour – The OSH ObligationsPublished March 31, 2006 - Australia
All employers have legal obligations to ensure employees’ health and safety at work.
Section 19 of the Occupational Safety and Health Act 1984 (WA) (OSH Act) provides that employees, as far as practicable, must not be exposed to anything that could result in an injury or cause harm. Inappropriate workplace behaviour by mentally ill employees could be such a hazard to other employees.
Accordingly, it is important that an employer appropriately manages a mentally ill employee to ensure the health and safety of all employees. The situation cannot be ignored.
However, mentally ill employees also have obligations in the workplace. All employees must avoid adversely affecting the health of others in the workplace. Employees must also comply with instructions relating to OSH: ss20(1) & (2) of the OSH Act.
Usually, it will also be an inherent requirement of a position that an employee be able to co-operate with and behave amicably towards co-workers. If an employee cannot behave appropriately there could be grounds for dismissal, particularly if retaining the employee would place an unreasonable burden on the employer to manage the behaviour so not to expose others to it.
Further, an employee with a mental illness who is also avoiding work or their duties will not be immune from dismissal just because they have a mental illness. Indeed, in the recent decision of Hollingdale v North Coast Area Health Service  FMCA 5 the Federal Magistrate’s Court, found the dismissal of a malingering employee who also had a mental illness was not discriminatory. This was because the employee had no medical condition that actually prevented her from working. Federal Magistrate Driver stated "an employer does not breach the [Disability Discrimination Act] by dismissing a malingerer or someone who is believed to be one."
Practical implications for employers
The dismissal of a mentally ill employee maybe an option open to an employer where the employee fails to:
perform their duties with reasonable assistance (if required)
behave appropriately in the workplace.