Mental illness a mitigating factor in misconduct

A dismissal will quite often be found by the Fair Work Commission to be relevantly unfair, warranting a remedy, even where there might be valid reason for it, where the employee can show that he or she was suffering a mental illness which contributed to the misconduct. The way the Commission factors this in is to treat it as a “mitigating” influence. Fire Brigade Employees’ Union of New South Wales (on behalf of Brendan O’Donnell) and Fire and Rescue NSW [2013] NSWIRComm 57 (O’Donnell). Also highlighted was the Fair Work Commission’s decision in Salazar v John Holland Pty Ltd (2014) FWC 4030. In both cases, it was argued that it was found that mental ill-health was a mitigating factor that was to be taken into account. It was stated that both Commissions, in doing so, had determined that the applicant’s dismissal in each case was harsh, unjust or unreasonable.
And see Vernham v Jayco Corporation Pty Ltd T/A Jayco (2015) FWC 81875 delivered 8 December 2015 per Cribb C