Australia: Mental illness and workplace disciplinary law: 6 golden rules

Applying workplace disciplinary law to a worker who suffers (or may suffer) from mental illness is complex. Competing laws such as anti-discrimination law and work health and safety laws must be finely balanced, and this complexity is exacerbated by the fact that mental illness is not always easily defined or diagnosed – indeed, even mental health experts find it hard to agree on a definition.

So how does a business ensure it is legally compliant when dealing with a worker who suffers (or may suffer) from mental illness? And most importantly, how can it ensure that it does not cause harm to anyone when it applies disciplinary processes?


Rule #1: Have Strong Policies and Processes In Place.

Ensure your disciplinary processes and policies have been designed to take the key issues around mental health into account. Audit your processes to ensure that they are up-to-date and accommodate all relevant laws.

Rule #2: Ensure Your People Are On Board.

Ensure your people know how to validly apply your processes. Well intentioned HR people sometimes talk of 'charging' people for policy breaches as if they are prosecutors under mainstream criminal laws. This approach inflames some and suppresses others. Neither outcome is positive, and may put the health of some at risk.

Rule #3: Challenge Your Bias.

If you are aware that a person suffers from a mental illness, question your own conscious and unconscious biases about mental illness. We kid ourselves that we have entered a new era of acceptance – we are merely knocking on the door of that new era. Challenge any readiness to accept the validity of complaints about persons with mental illness. Ensure you obtain statements of the facts that are as accurate as possible, and make sure you act only on facts.

Rule #4: Be Fair.

Apply your disciplinary processes fairly and transparently, and without bias. Do not take short cuts.

Rule #5: Don't Delay.

Do not delay when it comes time to apply a disciplinary process. Make sure you apply processes in a timely manner, keep everyone updated and make timely decisions. A little-known fact is that delay in occupational disciplinary law is a cause of workplace psychological injury and can exacerbate existing mental illness.

Rule #6: Seek Help If You Need To.

Until recently, mental illness was rarely, if ever, discussed at work. People were not encouraged to disclose their illness because of the stigma attached to it (and which some say, still attaches). Most of us make significant mistakes when we insist we know what we are doing when we do not. In truth, most of us are novices when it comes to managing issues related to mental illness in the workplace, and we should always seek help if we need it rather than assume we know what we are doing and end up causing harm and/or breaking the law.


A number of key cases in recent times have demonstrated the importance of ensuring that any alleged misconduct is not caused by or related to the employee's mental illness. The fact that alleged misconduct was the result of, or the manifestation of, an employee's mental illness may provide a defence with respect to the alleged misconduct (or is otherwise a mitigating factor in determining the appropriate action to be taken).

Employers also need to take care when dismissing an employee for 'misconduct' in circumstances where the impugned conduct may derive from or be related to a mental illness.

Many cases have made it clear that employers should determine if an employee can safely perform the 'inherent requirements' of a role if reasonable adjustments can be made, and also demonstrate that employees must be managed from a work health and safety perspective rather than a strict disciplinary perspective.

These issues have been explored in the following cases:

  • Vernham v Jayco Corporation Pty Ltd [2015] FWC 8185;
  • State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184;
  • Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 1052; and
  • Gibbons v Commonwealth of Australia & Ors [2010] FMCA.

Equally however, employers should remember that there may be times when reasonable adjustments cannot be made to accommodate a person's mental illness for a variety of reasons, including that the health and safety of others is put at risk.


It is safe to say that, to date, those suffering mental illness have often suffered in the workplace, and have been bullied and treated unfairly.

Workplace law is evolving to require all of us to accept a broader concept of diversity (race, gender and disability) and it is penalising behaviours that were described in the days of Mad Men as 'having a bit of fun' or 'larrikinism'. Some of these terms in fact translate to bullying, racism and sexism, all of which are unlawful in the workplace.

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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions