An employee who showed a keen interest in conspiracy theories has been awarded $20,000 in compensation after the NSW Civil and Administrative Tribunal (NCAT) found that her employer unlawfully discriminated against her by directing her to take sick leave amidst concerns about her mental health.
The employee was a child protection case worker employed by the Department of Family and Community Services.
In mid-2016, two co-workers of the employee separately reported to their manager conversations that they had had with the employee in which she became animated whilst discussing various conspiracy theories.
The employee had allegedly made statements referring to a “Large Hadron Collider” that was shutting down the atmosphere and other planets and meteorites that were going to hit Earth — events that the employee believed were being hidden by the government and world leaders. The employee had also expressed her belief in “fallen angels” that existed on Earth and had created “giants” with humans. The employee denied making only some of the alleged statements.
Upon hearing about these conversations, the employee was directed to take sick leave until her treating doctor confirmed she was well enough to return to work. The employee’s treating doctor promptly provided the requested evidence.
The employee claimed that she was unlawfully discriminated against on the basis of an assumed mental illness because she was subjected to a detriment (i.e. directed to take sick leave). In response to the employee’s claim, the employer argued that it held genuine concerns about the employee’s state of mind and that, given the nature of her work, it considered the matter was serious enough to require immediate action.
The employer argued that it would have issued the same direction to a hypothetical employee who had the same conversation about conspiracy theories and was not assumed to have a mental illness.
The NCAT found that the employer had directly discriminated against the employee on the ground of an “assumed mental illness”. Under the Anti-Discrimination Act 1977 (NSW) (AD Act), a disability also includes past, future or presumed disability.
However, the NCAT noted that this conclusion was reached not by any deficiency in the employer’s submissions but by the incompatibility of assumed mental illnesses with the relevant test to determine whether direct discrimination has occurred.
The “differential treatment” test requires that:
“the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person [without the disability] and that treatment must have occurred in circumstances which are the same or not materially different”.
In this particular case, the difficulty was that the employee did not suffer from the assumed mental disability. It therefore followed that a comparison could not be made between two individuals if neither of them had the disability. The NCAT considered that, inevitably, the manager would have assumed that a different employee who had the same animated conversations about conspiracy theories would have the same mental illness.
The employer was ordered to pay the employee $20,000 in damages taking into account that the direction materially contributed to the employee’s anxiety/depressive order.
What can your business learn from this decision?
This case demonstrates the potential difficulties employers may face when required to defend any action taken in relation to an employee whom it “assumes” has a mental illness, particularly if it does not have any persuasive evidence to support that assumption (regardless of how genuine the assumption is).
When concerns are raised about an employee’s mental health and/or state of mind, employers should take particular care to ensure that they have all of the necessary facts before taking any action that might adversely affect that employee.