Wilson (nee Miller) v Services Australia [2025] FWC 3328
KEY TAKEAWAYS
A recent Fair Work Commission (FWC) constructive dismissal case highlights some interesting dilemmas for employers when dealing with employees experiencing poor mental health.
In this case, the Commission found that continued engagement with an unwell employee about workplace concerns worsened his condition, and that accepting his resignation without proper consideration of his mental state constituted dismissal at the employer’s initiative.
In relation to workplace investigations and other workplace processes, the case is a reminder of the importance of assessing whether someone is well enough to participate and what support or adjustments might be considered.
The case
The FWC upheld the unfair dismissal claim of a Services Australia Service Officer who tendered his resignation three weeks after commencing leave for mental health reasons.
The events leading up to the resignation describe a scenario likely to be familiar to employers and workplace investigators.
- After raising a complaint about a rude subordinate and being dissatisfied with the outcome, the Officer became disruptive at work, making numerous calls and texts to his supervisor. He left work in distress in February 2025 and was medically certified unfit due to mental health issues.
- While on leave, the Officer participated in a meeting about his complaint and sent emails (some aggressive) to the workers’ compensation case manager late at night and early in the morning. During one phone call, he referenced self-harm.
- On 17 March 2025, the Officer resigned, citing a lack of safety at work. (The FWC described his resignation letter as lengthy and unclear.) Services Australia contacted his doctor to assess his mental capacity to resign, which the doctor confirmed.
- The next day, the Officer filed an unfair dismissal claim claiming he was forced to resign by Services Australia’s conduct.
FWC findings
FWC Deputy President Slevin held that the Officer was dismissed at the initiative of Services Australia and found:
- The employee was in a state of emotional distress when he resigned, such that ‘he could not reasonably be understood to be conveying a real or rational intention to resign’.
- Services Australia should have taken steps to confirm the employee’s genuine intention after a reasonable period of time. (No guidance was provided as to what that time period might be.) The FWC did not consider the employer’s contact with the Officer’s doctor – contact made on the day the resignation was received – to be sufficient or a substitute for allowing a reasonable period of time to pass. (The FWC decision did not criticise the contact with the doctor.)
- Services Australia’s conduct left the employee with no effective or real choice but to resign, particularly considering:
- they continued engaging with him about workplace issues while he was certified unfit for work
- multiple staff members from different departments required him to repeatedly recount distressing events
- the employee was without income for five weeks while awaiting a workers’ compensation decision. (This finding was made despite it being acknowledged in the decision that non-payment pending consideration of a workers’ compensation claim is the standard process in the Comcare scheme and not peculiar to Services Australia.)
It is difficult to reconcile these findings with the Deputy Commissioner’s views on the Officer’s behaviour, or with his comments that individual Services Australia staff did their best to deal with an employee ‘who was to say the least difficult’, stating ‘I cannot, and do not, fault them for the approach they took’.
- The dismissal was found to be harsh because the employee was not given adequate space to recover, despite previously demonstrating good performance.
The Commission awarded the employee $33,000 in compensation.
Key considerations
Workplace investigators often encounter participants suffering from mental health conditions and who exhibit similar behaviours to those described in this case.
This decision highlights the dilemma that may be faced by employers when dealing with an employee with poor mental health – walking the line between giving appropriate support (and space) to the employee, while also protecting the people they work with.
This case is a strong reminder of the importance of assessing whether someone is well enough to participate meaningfully in workplace discussions and processes, including workplace investigations.
More information
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Our expert team has documented best practice investigation approaches and processes, including how to deal with investigation participants on sick leave, in the industry-recognised expert guide, Workplace Investigations: Principles and Practice (2nd Edition).
