Fair Work Commission finds an employee was not unfairly dismissed despite highlighting mental health issues during investigation

In the recent decision of the Fair Work Commission (FWC) in Harris v Securecorp NSW Pty Ltd [2022] FWC 2781, Commissioner McKinnon held that an employee who alleged his employer failed to have regard to his pre-existing psychiatric conditions during the investigation into the employee’s alleged misconduct was not unfairly dismissed.

Facts

In 2018, the Applicant, Mr Joel Harris, was employed by the Respondent, Securecorp NSW Pty Ltd, in the position of Security Officer.

During his employment, the Applicant was reprimanded on a number of occasions for performance and conduct issues. In January 2020, the Applicant failed to empty a bin during his shift which formed part of his substantive duties. The Applicant met with his supervisor, Mr Daniel Pethyon, and was formally reminded about his employment obligations and the Respondent’s expectations moving forward.

In February 2020, the Applicant filed a bullying complaint against Mr Pethyon. As part of his complaint, the Applicant indicated that he was suffering from “anxiety health issues”. When requested for further information, the Applicant provided information about what he considered was differential treatment of him by Mr Pethyon compared to other employees. The Applicant, again, queried whether his mental health was “taken into account” by the Respondent in its investigations. The Applicant did not receive a response to his query and no evidence was submitted by the Respondent indicating it undertook an investigation into the Applicant’s compliant.

In May 2020, the Applicant failed to comply a direction to wear face masks during his shift, despite an organisation-wide direction for all staff to do so. The Applicant asserted that he indicated to Mr Pethyon that he had not received the direction as it was distributed through the Employer’s WhatsApp communication channel which the Applicant was not a part of. When requested by Mr Pethyon to download the WhatsApp app, the Applicant refused. The Respondent commenced an investigation and the Applicant was issued with a ‘final warning’ letter for failing to follow a lawful and reasonable direction to wear a face mask on site at all times and refusing to download the WhatsApp app as requested by his supervisor.

In March 2022, the Respondent issued the Applicant with a letter of allegations. In summary, it was alleged:

• On 22 February 2022, the Applicant was observed sleeping on duty in the control room by a cleaner who contacted Mr Pethyon. Shortly thereafter, Mr Pethyon conducted a welfare check on the Applicant, who indicated that was ‘ok’ and then proceeded to block Mr Pethyon’s phone number on the “SYD11” work phone;
• On 23 February 2022, the Applicant approached the cleaner querying why he had reported him to Mr Pethyon. The Applicant invited the cleaner into the control room and accessed the CCTV footage from the preceding day without authorisation. It was alleged the Applicant intimidated the cleaner by closing the control room’s door.
• When questioned by Mr Pethyon about his interaction with the cleaner, the Applicant stated to Mr Pethyon words to the effect of “you do not deserve to be respected”;
• On 25 February 2022, the Applicant abandoned his post and failed to complete a handover before leaving the site approximately 11 minutes early; and
• Caused operational issues by blocking the phone number of colleagues and Mr Pethyon.

The Applicant was provided with an opportunity to respond to the allegations. In his response, the Applicant denied the allegations and, notably, indicated that he had experienced medical issues on 25 February 2022 and therefore was required to leave his shift early.

After considering the Applicant’s responses, the Respondent determined that majority of the allegations against the Applicant were substantiated. The Respondent determined that the Applicant’s unauthorised access of the CCTV footage and leaving the site early constituted serious and wilful misconduct warranting termination of employment. In reaching its determination, the Respondent gave weight to the Applicant’s performance and conduct history. On 11 March 2022, the Applicant was informed of the Respondent’s findings, and was dismissed with immediate effect. The Applicant was paid three (3) weeks’ wages in lieu of notice.

Decision

In determining whether the dismissal was harsh, unjust or unreasonable, the FWC held that the accessing of CCTV footage by the Applicant, without authorisation or operational reasons, was outside his scope of authority and inconsistent with his duties to the Respondent. In relation to the Applicant’s unauthorised early departure from his shift, the FWC held that it was incumbent of the Applicant to report the need to take leave from his post as soon as his ability to perform work safely was in doubt. The Applicant’s failure to communicate with the Respondent put into question his ability to safely perform the inherent requirements of his role.

In response to the Applicant’s assertion that the Respondent had failed to consider his prior psychiatric conditions in its investigation, the FWC held that his disclosure was ‘general’ and in any event, despite it being a condition precedent to his employment, was not appropriately disclosed by the Applicant prior to commencing employment with the Respondent.

The FWC held that not only was the Applicant’s failure to disclose his medical history insufficient to meet his contractual obligations, but he could not then rely on the Respondent’s alleged failure to properly take those matters into account throughout the investigation to support a finding that he was unfairly dismissed.

The FWC also considered the Applicant’s prior warnings to be relevant to the Respondent’s decision to terminate his employment, especially considering those warnings were based on similar conduct by the Applicant.

Accordingly, Commissioner McKinnon held that there was a valid reason for the termination of the Applicant’s employment and therefore the dismissal was not harsh, unjust or unreasonable.

Take Home Messages

This case serves as a timely reminder for employers to ensure any pre-employment checks include a thorough medical assessment to identify any potential injuries or illnesses of a candidate which could result in an inability to safely perform the inherent requirements of the role. Employers are also reminded to ensure that where an employee claims to suffer from an injury or illness, that the validity of that claim is investigated to limit any exposure.

It is evident there was a breakdown in the relationship between the Applicant and his supervisor in this case. Commissioner McKinnon reprimanded the Respondent for its failure to properly investigate the Applicant’s complaints regarding his supervisor. We recommend employers investigate any and all complaints of bullying received by staff to identify, address and improve any fragmented or damaged relationships.

Employers are also reminded to ensure that all investigations are procedurally fair. While the FWC considered the Applicant’s prior warnings were relevant in this case, we do not consider the FWC’s position applies exhaustively, and caution should be exercised and determined on a case by case basis.

For more specific information on any of the material contained in this article, please do not hesitate to contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Thomas Tagirara on +61 8 8217 1337 or ttagirara@normans.com.au.

Our upcoming HR Masterclass may also be of interest – the focus this year is on recruitment and retention. It will form part of a broader LG Conference which will be delivered on 25 November 2022 and the full program can be viewed here.