Mental Health Issues no Excuse for Bullying

In this case the senior employee had been in a brief relationship with a female employee. The female employee decided to end the relationship and that is when the trouble started. The senior employee was not happy about the relationship ending and started to send numerous text messages to the female, calling her repeatedly, turning up at her house and arguing with her. The female employee became fearful of the senior employee and took out a trespass notice to prevent the senior employee coming to her house. 

The senior employee kept on harassing the female employee threatening to tell people at work about the intimate details of their affair, particularly to her manager. He subsequently admitted himself into the emergency psychiatric services as an in-patient. While in the psychiatric unit he sent a threatening email to the female’s work email. Once he was released, he posted photos of the female and details of their sex life on his private Facebook page. Many of their joint colleagues were friends of the senior employee and female employee. The female made a complaint to the police. The police advised the senior employee that he would be charged with criminal harassment if he made any contact with the female. At this stage, she also formally laid a complaint to her employer regarding the senior employee’s bullying, emotional blackmail, harassment, stalking her and verbal abuse. 

He then returned to the psychiatric unit briefly before attempting to take his life. He was treated in hospital and then detained in the psychiatric unit for 19 days. His employer visited him in the psychiatric unit and advised him of the complaint. When the senior employee was deemed well enough by doctors that he was no longer a threat to the female employee or himself, and could return to work, the employer suspended him and commenced the investigation into an allegation of serious misconduct for bullying and harassment of the female employee. 

The employer’s investigation substantiated serious misconduct, and the employer found that the senior employee’s actions had brought the employer into disrepute. He was dismissed. 

The senior employee claimed that the matter between him and the female employee was a private matter and not an employment matter. But the ERA found a private matter can become an employment matter if there is a sufficient nexus between the out of work conduct and the trust and confidence in the employee. In this case the female employee could hardly forget the harassment outside of work when she turned up for work each day and had to work with the senior employee. 

The senior employee also claimed that the employer had not given proper weight to the state of his mental health at the time of his actions. The ERA found that while the senior employee was suffering from acute adjustment disorder that may provide a partial explanation for his actions, it did not completely excuse or justify them. The employer did consider his mental health and took into account the doctor’s assessment of his state of mind, but the employer was able to conclude that the senior employee knew what he was doing, and the senior employee admitted that he had been trying to hurt the female employee.

The key here for employers faced with a similar situation is to give consideration to the facts, including the medical reports, before making a decision on how much weight is given to the employee’s mental health in excusing their behaviour. 

There is no doubt that these types of cases are very complex, and take a long time to resolve. In this case the female employee lodged her complaint in December. The senior employee was dismissed the following June. The other important aspect for the employer was to ensure the female employee’s safety once she had laid her complaint. In this case the employer had suspended the senior employee as soon as he was deemed fit to return to work, so there could be no contact between the two at work. 

We would advise any of our clients to seek immediate advice in any similar situation. The reason the employer’s decision to dismiss was upheld by the ERA, was largely due to the careful approach they took to investigating the allegation of serious misconduct and not taking immediate action while the senior employee was incapacitated.