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Mentally ill worker reinstated after being terminated

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 80, 17 May 2005

In a significant decision involving mental illness in the workplace, the Australian Industrial Relations Commission has ordered dairy food company, Murray Goulburn Cooperative, to reinstate a worker it sacked.

In Steven Berry v Murray Goulburn Cooperative Limited the employer sacked Steven Berry after two incidents, the first in which Berry left work during his shift without notifying his supervisor. In the second incident were Berry was found in the workplace with a cigarette and beer. Berry had also gone into a hygienic area (the butter room) without proper clothing and left a can of beer in a fridge. The consumption of alcohol and smoking were banned in the food plant. The worker was stood down without pay pending an investigation.

Around the same time, Berry was involved in a robbery of a cash bag and two packets of cigarettes from a local supermarket (for which he later received a community-based order). After the robbery, the worker’s family sought help and Berry was committed to a psychiatric hospital where he received treatment for schizophrenia.

Several months later, the worker advised the employer that his health had been restored and he wanted to return to work. However, after a meeting with senior management and a union official, he was advised that his employment was terminated for misconduct, despite the employer being aware of the mental illness, and that the Berry had sought, and been responsive to treatment of his condition. The employer’s position was that consumer confidence could be seriously affected by any contamination of its products due to a breach of the strict company hygiene standards.
The Commission determined that it was necessary to examine the “total factual matrix”. The Commission held that due to the Berry’s mental illness, he was not in control of the actions that led to his dismissal, and on that basis his dismissal was harsh, unjust and unreasonable.

The medical evidence presented to the Commission supported the worker’s ability to return to his former job and indicated that there were no special requirements for monitoring in the workplace that needed to be considered by the employer. The Commission ordered reinstatement and compensation for lost wages between when the worker was out of hospital and had finished his community service and the date he was reinstated.

The Commission also noted the efforts of governments, health bodies and other organisations to encourage the community to not isolate and/or discriminate against individuals with a mental illness.

HR Tips

• Employers should ensure that a fair process is adhered to in the discipline and termination process of a mentally ill worker, including considering whether the worker was in control of his/her actions at the time of wrongdoing.

• Employers should always consider medical evidence in support of a mentally ill worker returning to his or her job before termination.

• Employers should be careful not to isolate and/or discriminate against workers who suffer from mental illness, or who take medication for ongoing illness.