by Mark Curran, Partner, Kaden Boriss, Brisbane
Employees with psychological impairments are not protected from having their employment ended because of performance or misconduct issues where there is no evidence that their performance or misconduct is linked to their illness. This is the finding of the Full Federal Court in the decision of State of Victoria (The Office of Public Prosecutions) v Anthony Grant  FCAFC 184.
Mr Grant was employed by the Victorian Office of Public Prosecutions in 2007 as a solicitor. In September 2010, he broke his leg and required medical treatment over a number of months to deal with the injury. During this period, Mr Grant's attendance at work was sporadic. His absences continued throughout 2011 and into the early part of 2012. These absences gave rise to a number of difficulties relating to the preparation of cases for hearings that Mr Grant was responsible for.
In early 2012, following a meeting with Mr Grant about his absences, Mr Grant advised his employer that he was suffering from depression. In February 2012, Mr Hyland from the Office of Public Prosecutions directed Mr Grant take leave with pay and provide a medical report on his condition and the impact of it on his ability to perform his role. Mr Grant then provided a report from a Dr Frean which stated Mr Grant had a long-term anxiety condition which had been complicated by excessive consumption of alcohol and bouts of depression.
On 26 March 2012, Mr Hyland wrote to Mr Grant advising that he had authorised an investigation into a number of allegations of misconduct which had been made against Mr Grant. These related to alleged disobedience of lawful directions. The result of the investigation was that Mr Hyland found that each of the allegations was substantiated and terminated the employment for those reasons.
Mr Grant commenced proceedings in the Federal Circuit Court of Australia alleging his employer had taken adverse action against him under the Fair Work Act 2009 because of his mental disability. The Federal Circuit Court upheld his claim and made orders for reinstatement to his former position, payment of lost wages and imposition of a penalty of $10,000.00. The State of Victoria appealed to the Full Federal Court contending that the Judge erred in finding that Mr Grant's mental disability was a reason for the termination of his employment.
Decision at first instance
Mr Hyland gave evidence that the only reason he terminated Mr Grant's employment was because he had engaged in misconduct. Mr Hyland denied that Mr Grant's mental disability had played any part in the making of his decision. The investigation into Mr Grant's conduct was instituted by Mr Hyland in mid March 2012 after he had received an email from a Mr Bird outlining the alleged misconduct. It was purely coincidental that these allegations had been made shortly after Mr Hyland had become aware of Mr Grant's medical condition.
The Primary Judge found that Mr Hyland's evidence had been given honestly, however he also found that Mr Hyland's evidence about his reason for terminating Mr Grant's employment was "unreliable" and that Mr Grant's mental disability was a reason for the decision. In particular the Primary Judge found:
Decision on Appeal
Justices Tracey and Buchanan found it difficult to comprehend how Mr Hyland's evidence that he had acted because of Mr Grant's misconduct and for no other reason could be both honest and yet unreliable. Their Honours also noted that there was nothing in the report of Dr Frean which attributed the four acts of misconduct on which Mr Hyland had relied in dismissing Mr Grant to the mental illness suffered by him. Accordingly, their Honours concluded there was no evidence to support the Primary Judge's finding that Mr Grant's conduct arose wholly out of his medical condition.
Nor did their Honours accept the Primary Judge's conclusion that Mr Grant's misconduct was completely interwoven with his medical condition. Their Honours noted that relevant High Court authorities, including Board of Bendigo Regional Institute of Technical and Further Education v Berkley  HCA 32 and Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd  HCA 41 and Curtis v NSW  HCA 62, showed that it is possible for there to be a close association between a proscribed reason and the conduct which gives rise to adverse action and for the decision maker to still satisfy a court that no proscribed reason actuated the adverse action.
White J, who in most respects agreed with the other Judges, noted there may be some medical conditions in which the condition and its manifestations are indistinguishable. His Honour said this may make separation of the condition and the manifestation a difficult, if not artificial, exercise. However, in this case the Judge did not have evidence indicating Mr Grant's medical condition was of this kind - there was no evidence that Mr Grant's conduct arose wholly out of his medical condition.
There will be some cases where disciplining an employee for misconduct and performance reasons amounts to treating them adversely because of their medical condition (because the misconduct or performance is a manifestation of the medical condition). However, in many cases it will be possible to separate a medical condition from the employee's conduct or performance. This is because there will be some situations where the employee's conduct or performance is not attributable to their medical condition. This suggests two things. Firstly, that medical evidence will be important in making these distinctions and secondly that employers can (if they wish) take a robust attitude towards disciplining employees who have medical conditions, where their unsatisfactory conduct or performance is unrelated to their condition.
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