Managing misconduct in the context of psychiatric injury presents complexities for local government. When an employee has a history of psychiatric injury and workers’ compensation claims but subsequently engages in misconduct, addressing and managing the misconduct can often be difficult and fraught with challenges. Councils need to carefully navigate the risks of discrimination, unfair dismissal, general protections, and contraventions arising under workers’ compensation law.

In this case, the Queensland Industrial Relations Commission was required to assess the fairness of a local council’s management of a disciplinary process and termination, and to consider whether the misconduct relied upon to warrant termination was, in fact, a manifestation of a psychiatric injury suffered by the employee.

At the heart of the dispute was the dismissal of the applicant from his role with Brisbane City Council (Council) due to six acts of alleged misconduct and an Application for Reinstatement to his role as a bus driver. A key feature of the case is the way Council's decision maker reached an outcome of termination by having regard to the allegations of misconduct alone, and not the employee's psychiatric injury. 

The Council argued the employee's conduct in six separate instances, which included breaches of the Council's Code of Conduct, was serious enough to justify his termination. The employee contended that dismissal was disproportionate to his conduct and that any conduct which could be established was specifically attributable to his mental illness injury, resulting in a discriminatory termination.

In its analysis, the QIRC acknowledged the importance of distinguishing between misconduct that can be attributed to a person’s actions and conduct that may be the result of psychiatric harm.

Where the employee had the opportunity through the "show cause" process to demonstrate to the decision maker that his conduct had, in any relevant way, a causal connection to his mental illness, and had failed to do so, the QIRC found the employee's misconduct was not a consequence of any psychiatric illness or condition from which he had suffered.

The QIRC came to this conclusion by setting out that the employee's evidence did not support his claim, noting four reasons for this at [139]-[153]:

1. The uncontested evidence was that the employee was assessed as fit to resume bus driving duties as from 1 February 2023 and the misconduct happened on and after 9 February 2023.

2. The employee attributed his conduct to stress from an earlier accident, but in cross-examination described it as minor, saying he "clipped" the vehicle with "no damage". CCTV evidence showed him laughing while watching his phone and showing no physical signs of anxiety from the collision. The employee gave no evidence his anxiety was high because of any pre-existing psychiatric illness. He also did not deal with his other impugned conduct on separate dates.

3. The medical evidence did not support the employee's claim. There was no expert medical evidence from three separate medical experts who had seen the employee that supported the employee's contention he was suffering from a psychiatric injury or illness the manifestation of which caused his misconduct. One psychiatrist’s report stated it was the employee's personality that drove his behaviours, not a psychiatric illness.

4. There were other discrete reasons why the QIRC did not accept this particular claim by the employee, including:

   • His 2023 workers' compensation application claimed the February events caused his mental illness, not that they aggravated pre-existing conditions.

   • He never claimed to Council's Delegate during the disciplinary process that his misconduct was due to mental illness.

   • A work capacity certificate issued by a psychiatrist stated his injury did not prevent return to duties and medication would not impede cognitive function, which did not support the claim that psychiatric illness caused the conduct.

Another important aspect of the case is the QIRC’s exclusion of s 232B of the Workers' Compensation and Rehabilitation Act 2003 (WCRA). This section of the WCRA prohibits termination of an employee solely or mainly because a worker is not fit for employment due to an injury for a period of 12 months after the injury is sustained.

The employee's representative sought to rely on this prohibition as a matter of unfairness in the termination. The QIRC specifically pointed out that the proceedings were not brought under the framework of this section, and therefore, it did not form part of the legal consideration in the case.

In paragraph [118], the QIRC clearly stated that the application before it was not an application under the WCRA for reinstatement, and that instead the Application for Reinstatement jurisdiction under the Industrial Relations Act 2016 (Qld) (IR Act) had been enlivened; as such, there was no need to engage with the WCRA provision.

This distinction is crucial because it underscores the importance of an applicant's election in determining which jurisdiction to enliven to challenge their dismissal, and the considerations employees must apply relevant to the type of application brought in supporting their application.

This point also means that consideration was not given to the WCRA in deciding whether the dismissal was "harsh, unjust, or unreasonable" so as to make it unfair, but was instead assessed in accordance with sections 316 and 320 of the IR Act.

Section 320(1)(c) of the IR Act provides that the QIRC must consider whether an employee was warned about their conduct, if their dismissal was because of conduct.

At paragraph [213], the QIRC identified that the employee was not warned about his conduct prior to dismissal. However, in balancing the considerations under section 320, the Council was able to establish that the employee was otherwise familiar with the Code of Conduct, and that, given the nature of his misconduct, the QIRC considered a failure to warn the employee prior to dismissal did not render the dismissal unfair.

The case is rich with other considerations that speak to the complexities of assessing misconduct in the context of psychiatric injury. One of the key insights is the approach adopted by the Council's decision-maker and their evidence at trial.

Ultimately, the QIRC was satisfied that the Council's Delegate’s own conclusions about the facts of the employee's conduct, and her conclusions that he had engaged in misconduct, were properly made. This was for the following reasons:

1. The Delegate's evidence was considered genuine. The Delegate's evidence was that the reasons for her decision to terminate the employment were her conclusion that he had engaged in six acts of misconduct, as alleged against him, and that his behaviour was inconsistent with the continuation of his employment by the Council.

2. There was no evidence the Delegate gave in cross-examination that caused the QIRC to doubt the veracity of her evidence about why she made the decision to terminate the employee's employment.

3. The Delegate did not waver in her evidence about why she made the decision to dismiss the employee, and her evidence about why she made that decision is consistent with the contemporaneous documentary evidence of the disciplinary process.

4. In the course of the disciplinary process, at no point did the employee make the case to the Delegate, supported by medical evidence, that the conduct in which he allegedly engaged were episodes which had a causal link or connection with any mental illness from which he suffered.

In light of Satterly, local governments across Queensland and Queensland Government employers should consider the following when dealing with employee misconduct through a 'Show Cause' process: 

1. Delegates must give genuine consideration to disciplinary matters before them and turn their mind to the facts. While HR teams may largely oversee a process, delegated decision-makers will be required to give evidence if matters proceed to hearing, and must be able to demonstrate their own decision-making process.

2. Maintain clear, contemporaneous records throughout the disciplinary process. The Delegate's consistent documentation supported the validity of her decision-making process and demonstrated that misconduct, not a psychiatric injury, was the reason for the termination decision.

3. Focus disciplinary decisions on established misconduct.The case demonstrates that employers can validly terminate for misconduct even when psychiatric injury is present, provided the misconduct is not causally connected to the psychiatric injury.

4. Provide genuine opportunities for employees to explain their conduct through a show cause process and raise any mitigating factors with supporting evidence, including for mental health issues, during the disciplinary process.

While the jurisdiction is different for other government employers in other states, territories, and federally, the lessons provided by this case offer a useful guide.

Good record keeping, providing genuine opportunities for employees to respond, and a clear understanding of the elements of serious misconduct, and when that threshold is met, are essential considerations for any government employer when deciding whether an employee should face disciplinary action, including termination. This applies even to employees who have exercised workplace rights, have been on WorkCover, or possess a protected attribute.

Colin Biggers & Paisley acts for local governments across Queensland. For more insights on how this decision may affect your disciplinary process, or for advice on managing a specific issue, contact our Employment & safety team. Our experienced legal team specialises in local government and employment law and can help ensure your workplace practices are legally sound and up to date with the latest decisions.