Mental Health and Misconduct Investigations: The Complex Dichotomy

The intersection of mental health issues and misconduct allegations in the workplace can be a complex landscape for Employers and HR professionals to navigate.

Investigations into workplace misconduct, under normal circumstances, often stretch the limits of patience and determination. This challenge becomes significantly heavier when mental health issues come into play.

Often, employees will default to their mental health concerns, to deflect their misconduct or poor performance. However, this alone, does not excuse and absolve responsibility for inappropriate behaviour towards colleagues or poor performance in the workplace and employers should not shy away from dealing with these issues, in fear of creating further mental health concerns.

Instead, these cases should be handled with as much compassion as possible, offering additional support where necessary. This support could include extended response times, promoting the importance and encourage the use of a support person, or the option to respond in writing to allegations presented.

When an employee contests a dismissal resulting from a misconduct investigation, their mental health concern may factor into the Fair Work Commission’s (FWC) ruling on whether the dismissal was unjust.

Thus, it is crucial that HR strikes the right balance between empathy and procedural fairness.

Here are three legal pointers for HR professionals to remember when dealing with misconduct cases involving mental health issues.

1. Does the employee’s conduct constitute an unsafe working environment?

• Employers are obligated to consider the impact of an employee’s behaviour on the wellbeing of their colleagues as well as their own during investigations.
• In some cases, the FWC has supported the dismissal of an employee on grounds of serious misconduct when the said employee put others at risk due to severe mental health conditions.
• However, employers should not always jump to the conclusion that any negative behaviour automatically results in a hazardous workplace.

2. Can investigations proceed while the concerned employee is on leave?

• Contrary to what some may think, conducting a misconduct investigation while the employee is on leave doesn’t contravene any legal norms. In fact, these periods might yield more information as colleagues might feel more comfortable talking about their concerns. However, transparency and procedural fairness must be upheld upon the employee’s return to work.

3. How to handle cases where the employee has not disclosed their mental health condition?

• Under the Disability Discrimination Act 1992 (Cth), moderate to severe mental health issues are viewed as disabilities. Employers are legally required to make reasonable adjustments to support employees with mental health concerns during any disciplinary process.

That said, employers can only adjust for conditions they’re aware of. Employees aren’t required to disclose mental health conditions prior to employment. However, if such conditions could compromise safety at work, there is a legal obligation for employees to disclose these or abstain from performing tasks that could be potentially hazardous to themselves or others.

The intersection of mental health and misconduct cases can be nuanced, but with the right guidance and support, this can be navigated and managed effectively.

If you need support with this, contact us at Preston HR today.