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‘Depressed’ employee fails in adverse action claim

An employee who was dismissed for being unable to perform the inherent requirements of her role has failed to establish to the Federal Circuit Court’s satisfaction that the employer dismissed her because she was depressed.

Background

The employee, who commenced employment with the health services industry employer in 2011, was employed as an on-site Turkish interpreter providing interpretation services in community hospitals and clinics.  From early 2012, this employee began to demonstrate a pattern of absenteeism and lateness for work, including failing to attend for appointments.

Relevant to this matter, on a number of occasions during the first half of 2012, the employee requested leave without pay to travel to Turkey for two months later that year.  In May, the application was denied. The employee’s pattern of absenteeism and lateness for work continued, culminating in a formal warning being issued to her in July.   There were further absences following the warning.

At the end of July, the employee applied for annual leave for 3 days so that she could go to Hawaii with her daughters at the end of August and this was approved.  In mid-August, and after a further 3 day absence, the employee produced a medical certificate to her manager for 2 months sick leave starting from 1 September and ending on 31 October. The medical certificate said:

“It is my opinion that [the employee] needs medical leave from1 September 2012 to 31 October 2012. It is important that she be in Turkey for her father’s second death anniversary.”

The employee subsequently attended a meeting the following day with the employer regarding that medical certificate.  That was the last day that she attended for work.  She was absent the next day and then telephoned her manager and told him that she would be attending her doctor upon her return from Hawaii and that she may not return as scheduled on 27 August.  Whilst on annual leave in Hawaii the employee sent 23 emails to her manager with photos and videos of her holiday.  She did not return to work on 27 August, and subsequently took 2 months unpaid sick leave as per the medical certificate.

The employee then commenced a WorkCover claim on 8 November 2012.  The claim indicated that the employee had been suffering from depression.   A subsequent medical report provided to the employer in December indicated that the employee had a pre-existing recurrent major depressive illness and had been receiving ongoing treatment for that.  It said that she had had a recurrence (aggravation) of the condition whilst working for the employer and that “interpreting for elderly people who were dying reminded her of her father’s death…” The WorkCover claim was rejected.

In July 2013, the employee sought a return to work.  The employer requested the employee have an independent medical examination to determine her fitness to perform the inherent requirements of her role.  The doctor’s first report in August 2013 said that the doctor did not think that she could return to her pre-injury hours in her normal duties and recommended a very gradual return to work program.

In November 2013, the employer requested a supplementary report from the doctor.  The request letter noted the psychological risks involved in the employee’s role and the unpredictable environment in which she was required to work and that stressful situations that could not be not necessarily be avoided.  It also stated that the suggested half day a week return to work program was problematic given the way the clinics operate.

The doctor wrote back in December 2013 and confirmed that he could not recommend more than half a day week return to work and that a whole day would put the employee’s recovery at risk.

The employer subsequently wrote to the employee in March 2014 and referred to the report and stated “… this evidence suggests that you are not capable of performing the inherent requirements of your pre-injury duties, both now and into the foreseeable future.” The letter went on to say that the employee’s employment would be confirmed unless she could provide evidence that the conclusion that she could not perform the inherent requirements of her role was incorrect.

The employer subsequently received a letter from the employee’s general practitioner saying that she could work one afternoon a week, which was argued to alleviate the problems of the clinics running overtime.  Despite the GP’s letter, the employer’s HR personnel subsequently recommended termination to the employer’s CEO and that recommendation was accepted, and the employee was terminated in May 2014.

The claim

The employee subsequently made a general protections claim, primarily on the basis that the employer took adverse action against her because of her mental disability, namely depression.  She argued that the adverse action taken by the employer included belittling her, taking unreasonable disciplinary action against her and putting pressure on her to resign.  She also argued that refusing to allow her to return to work or put reasonable adjustments in place to accommodate her return, and then terminating her employment, were all also adverse action in the circumstances.

The decision

In terms of the alleged belittling of the employee being adverse action, Judge Riley dismissed this claim.  One of the instances of belittling raised was that the employer had challenged the validity of the medical certificate for the 2 months unpaid personal leave.  Judge Riley stated that it was ‘entirely proper’ for an employer to question a medical certificate in the circumstances where the employee had sought 2 months’ unpaid personal leave where she appeared to be fit for work when the certificate was issued; and she was having a holiday immediately prior to the period; and there was no suggestion of surgery or something similar during the period of the leave.

The employee claimed that the disciplinary action taken against her in terms of the warning for her absenteeism and lateness was taken against her because of her depression.  It was the employee’s position that it did not know that the employee had depression at the time the warning was issued and, on that basis, the depression could not have been a reason for disciplinary action.  In cross examination, the employee conceded that she had never told the employer that she suffered from depression, but instead argued that the employer should have known she had depression because she had commented to her manager that she had personal issues and ‘was not right in herself’ and she cried frequently during the meeting with her.

On this issue, Judge Riley stated:

“Having observed all of the relevant witnesses give evidence, I am not satisfied that [the employer] knew in July 2012 that the applicant had depression. The applicant had not told them at that stage that she had depression. By saying that she had personal issues and was not well in herself, the applicant did not effectively communicate that she had depression. Personal issues and not being well in oneself are vague and general concepts and can refer to a broad range of things. Being tearful might be a sign of depression. However, it is also, I daresay, a not uncommon reaction when subjected to a disciplinary meeting. Being repeatedly late for work might be a sign of depression. However, it might also indicate a lack of commitment to the job. “

Judge Riley also dismissed the suggestion that the employer suggesting the Applicant resign was adverse action, noting that the employer denied that it had ever made such a suggestion.  Judge Riley did comment that if such a suggestion was accompanied by an action such as a demotion or reduction of hours then that may be a different matter for consideration.  Judge Riley also flagged again that as the employer did not know about the employee’s depression at the time claimed, then that could not have been a reason for the suggestion that the employee resign.

The employee argued that the employer requiring her to be cleared to work a full day was adverse action taken against her.  Judge Riley dismissed this argument and commented strongly as follows:

“This is a spurious argument. The applicant’s position required her to work three full days per week. Following the relapse of her depression in 2012, she was unable to work full days. Requiring her to be “cleared” for at least one full day per week did not alter her position. It simply required medical evidence that she was able to meet the pre-existing requirements of her position for at least one day per week.”

Judge Riley also accepted that, in the circumstances, there were no reasonable adjustments that could be made that would assist the employee to return to work and that the employer did not allow the employee to return to work for half a day a week because she could not perform the inherent requirements of the role.  Judge Riley also accepted that the reason that the employee was eventually terminated was that she could not perform the inherent requirements of the role, and not because of the employee’s depression or any of the other numerous arguments raised by the employee as reasons for rejecting that position.

Ultimately, the employee’s claim failed on all grounds.

Lessons for employers

Dealing with and/or dismissing an employee who is suffering, or claims to be suffering, from illness or injury is an extremely difficult scenario for employers, and one that seems to be increasing in frequency in a time where employees are becoming more aware of their rights.

This case provides a good illustration of an employer taking all the necessary procedural steps and ensuring that it had sound medical evidence to rely upon before terminating an employee who could not perform the inherent requirements of her role.

Legal advice in such a scenario is imperative for employers as there are numerous pieces of legislation that need to be considered before terminating an employee in this situation.

It is also pertinent (if not obvious) for employers to know that if they are unaware of a particular injury or illness that is suffered by an employee, then that employee will find it difficult to sustain an argument that the injury or illness was the reason for adverse action being taken against them. 

Mark Bunch, Partner

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