Having a brave conversation with staff when an incident occurs could save you the challenge of a legal dispute

Earlier this year, in a case between the Fire Brigade Employees’ Union of NSW (on behalf of Brendan O’Donnell) the Fire & Rescue NSW, O’Donnell was terminated for assaulting another fireman.

At the time of the assault, O’Donnell was affected by a mental illness, however it had not been diagnosed, and his employer was not aware that he had a mental illness.

The first time his employer became aware of a mental illness was after he lodged a worker’s compensation claim, sometime after the investigations into his conduct had commenced.

In the disciplinary proceedings, neither O’Donnell nor his union advised the employer that he was suffering from a mental illness, so the decision-maker of the employer was not aware of a mental illness when deciding to terminate O’Donnell’s employment.

O’Donnell led evidence in a disputed worker’s compensation claim at a later time of his mental illness, and also produced evidence before the NSW Industrial Relation Commission (disputing his termination of employment) of mental illness. He argued that the summary termination was not a valid termination, and in any event, it was harsh.

The Full Bench of the NSW Industrial Relation Commission held:

  1. Although the termination was valid, failure to take into consideration O’Donnell’s mental illness at the time of the assault meant that the Commissioner at first instance was in error.
  2. O’Donnell was suffering from a mental illness at the time of the assault and it was a key factor in why he assaulted the other fireman.
  3. Had there been a quality employee well-being program run by the employer facilitating open conversations about employee wellbeing, the mental illness would have been detected, he would have been treated, and it is likely that the assault would not have occurred.
  4. The nature of the mental illness suffered by O’Donnell was probably not work related. As a result, the well-being program could have appropriately treated O’Donnell without the risk of litigation or compensation.
  5. When an instance of this nature occurs it is critical in the investigation phase to squarely put to the person was there anything that could in anyway have caused the incident. It is much better to know the reason prior to terminating an employee than finding it out when the termination process has been set aside.
  6. In the circumstance of this case, had O’Donnell’s mental illness been considered and understood, and following that consideration had the decision been made to summarily terminate him, it is likely it would have been upheld. It was the failure to consider that issue by the Commissioner that led to the decision of the Full Bench setting aside the Commissioners decision.

What are the lessons for employers?

Importantly, had an employer found that a person’s actions were caused or partially caused by mental illness, and that mental illness had been treated so that it was unlikely that the behaviour would never happen again, it was probable, that the relevant worker’s employment would not be terminated.

One of the key lessons from this case is that having a courageous conversation at the right time can often prevent all the pain, hurt and costs associated with such decisions.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.


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