It's against workplace laws to discriminate against people
with a mental illness, but a survey by the Australian College of
Psychiatrists has found more than half those with a mental illness
looking for work believe they were rejected because of their mental
One person told researchers he would have been better off
telling job interviewers he'd just been released from
"Sometimes I think it's worse than telling them you
have been in jail. Once you mention it their face changes and their
body language changes and you know you won't get the
Around three per cent of Australians – 600,000 people -
are diagnosed with a severe mental disorder. More than 3 million
Australians have had a mild to moderate condition. It is far more
common than most believe.
Workplace law expert at Stacks Law Firm, Nathan Luke, said it
would be difficult to apply laws that protect against workplace
discrimination to people rejected from job applications unless it
could be established they were discriminated against.
"Mostly they just don't get the job and aren't
given a reason," Mr Luke said.
"The company will say somebody else had better
qualifications or you didn't quite fit the requirements. But if
they say something like 'We don't want you because you have
a mental illness', then you could have a case and should seek
expert legal advice."
Section 351(1) of the Fair Work Act 2009 states:
"An employer must not take adverse action against a person who
is an employee, or prospective employee, of the employer because of
the person's... mental disability."
There are similar provisions in the Disability
Discrimination Act 1992 and Australian Human Rights Commission Act
Mr Luke said employers would be wise to get legal advice to be
sure they are complying with the law as penalties can be severe.
Employers have legal obligations to avoid discrimination, ensure
privacy, avoid adverse actions and make sure the workplace fulfils
health and safety regulations.
"There may be safety reasons a person with a mental illness
can't do certain work, but the employer needs to establish
alternatives were offered. Unfair dismissal claims can be costly to
On a positive note, the survey did find 24 per cent of employees
with a mental illness reported positive treatment at work. However
11 per cent said they were avoided by colleagues, and 14 per cent
felt they were discriminated against.
While there is still stigma and ignorance surrounding mental
health, employers are becoming aware that mental illness is fairly
common. Two thirds of people with a reported mental illness are
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).