Mental health issues and serious misconduct

If you're struggling with mental health challenges at work, you might worry about how it could affect your job—especially if you've been accused of misconduct. But the Fair Work Commission (FWC) has made it clear that employers must take mental health conditions into account when making decisions about termination.

In Salazar v John Holland Pty Ltd, an employee was dismissed for serious misconduct. However, the FWC criticized the employer for failing to properly consider the employee’s mental health condition. If your actions were influenced by a mental health episode, this should be factored into your employer’s decision—and if they ignore it, your dismissal could be unfair.

Another case, Verhnam v Jayco Corporation Pty Ltd, reinforced this point. Even though the employee engaged in serious misconduct, the FWC ruled the dismissal unfair because the employer should have recognized warning signs of mental illness. You don’t necessarily need to formally disclose a mental health condition for your employer to be responsible for considering it. If you've shown clear signs—like struggling during HR meetings or mentioning personal difficulties—they may be expected to take this into account before dismissing you.

If you're facing dismissal and mental health played a role, you may have grounds to challenge your termination. Every case is different, but you have the right to be treated fairly. If you believe your mental health wasn’t properly considered, you can seek advice and potentially lodge an unfair dismissal claim.