State of Victoria (Office of Public Prosecutions) v Grant
Citation: [2014] FCAFC 184
At a glance
- Employees affected
- 1
What happened
Anthony Grant was employed as a solicitor by the State of Victoria's Office of Public Prosecutions from 2007. From late 2010, his work performance deteriorated and he had frequent absences. In September 2010 he broke his leg and required ongoing medical treatment. On 6 February 2012, his general practitioner advised he was suffering from depression and should inform his employer. Grant then disclosed his mental disability to managers. On 26 March 2012, the State initiated an investigation into alleged misconduct: failing to attend work on time on 13 separate occasions, failing to brief counsel on a matter, failing to attend court as directed, and attending a sentencing hearing contrary to directions.
What was decided
The Federal Circuit Court found the State contravened s 351 of the Fair Work Act by taking adverse action (termination) because of Grant's mental disability. The trial judge found the mental disability was a reason for the dismissal. The State appealed to the Full Court. The Full Court allowed the appeal and set aside the orders. The court found the termination was based on substantiated misconduct (the four allegations of disobedience and poor performance), not because of the disability. The court held that while Grant's disability may have explained the conduct, it was not the reason the employer terminated him.
What it means for employers
Employers must not terminate an employee because of mental disability. However, if an employee's conduct breaches workplace obligations and amounts to serious misconduct, dismissal may be lawful even if the employee has a disability. Employers should conduct fair investigations and make clear findings about the employee's actual conduct. If disability is a contributing factor to poor performance, employers should explore reasonable accommodations before dismissing.
What it means for employees
Employees with mental disability who are dismissed should examine whether the true reason for dismissal was the disability or the employee's actual conduct. Disability may explain conduct but does not excuse serious breaches of workplace obligations. Employees can bring claims for disability discrimination if disability was an operative reason for dismissal, even if not the only reason.
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https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2014/2014fcafc0184Want more cases like this?
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →