Burke v Suncorp Group Pty Ltd [2015] FWC 3357:Mental Health and Dismissal

A former Suncorp employee who was dismissed for poor performance was awarded more than $8000 damages after the Fair Work Commission ruled his dismissal to be unfair. The Commission ruled that Suncorp had failed to take into account the employee’s mental health issues when deciding to dismiss him.

Background

Michael Burke worked as an insurance claim officer for Suncorp since April 2011. In April of 2014, Suncorp alleged that Burke had tried to boost his workplace efficiency scores by not completing the correct amount of work. Burke was given a final warning letter for his inconsistent performance and this was his first and final warning with no previous verbal or written warning. Sarah Lock, principal lawyer Workplace Law Group in Brisbane, says that “there is no obligation that says you need three warnings and then you are out, this is just a guide.”

Suncorp then attempted to implement plans that would improve Burke’s performance by setting out a number of objectives to be met by him. However, two months after this, his employment was terminated. Suncorp argued that Burke had been subjected to performance management since 2012 and his work had not improved since then. Burke argued that he suffered from a mental condition. The Commission also heard that Burke was absent for seven months out of the eighteen months prior to his dismissal.

Suncorp was not aware of Burke’s mental health issues because it was not disclosed. However, the Commission heard that upon his return to work, Burke had dealt with Suncorp’s return-to-work team and submitted various documents outlining how he was ‘heavily sedated from medication’ and ‘unable to focus or concentrate.’

Commission Ruling

Deputy President Ingrid Asbury ruled that the reason for termination by Suncorp was valid. But the dismissal was nevertheless found to be unfair because Burke’s mental health issues were ‘reasonably obvious’ and Suncorp had not taken this point into consideration. She explained:

The ruling highlights the importance of mental health issues in the workplace. In this instance, Suncorp had followed a rigorous disciplinary process and gave Burke every opportunity to rectify his performance issues. However, failing to investigate if there were any critical health issues that could have impacted his ability to work was enough to make his termination unfair. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

 Burke v Suncorp Group Pty Ltd [2015] FWC 3357

Former Suncorp employee wins unfair dismissal bid following depression