Serious misconduct and working when mentally unwell


In a recent decision of  Mr Oliver Doherty v Defend Fire Services Pty Ltd T/A Defend Fire – [2024] FWC 1444 | Fair Work Commission the Fair Work Commission considered whether a worker who attended work whilst mentally unfit to do so, was unfairly dismissed.  


Mr Doherty was a full time Fire Technician and adult sprinkler fitter apprentice. He was summarily dismissed for serious misconduct for five reasons: 

  1. Using a work vehicle for personal use without permission and not keeping it in a suitable condition; 
  1. Hiding a tool he had been asked to return; 
  1. His actions and presentation on the work site; 
  • Sending an abusive message to his supervisor; and 
  • Taking an unreasonably lengthy absence without reasonable grounds to do so, 

together, “the Employer’s Reasons”. 

Mr Doherty filed an unfair dismissal application. In his oral evidence he stated that he was absent due to mental health issues and that he had returned to work for approximately four days when he knew he was not ready to do so. He gave evidence that he felt he needed to return early because his employer indicated that if he continued to be absent from work they would need to retrieve his work vehicle from him. 


The Fair Work Commission found that Mr Doherty: 

  1. was not pushed to return to work by his employer – instead Mr Doherty prioritised keeping the vehicle over ensuring he was fit for work before returning. This created a substantial safety risk for others on the work site.  
  2. The serious breach of work health and safety obligations constitutes serious misconduct that provided a valid reason for dismissal.  

Although this reason was not listed by the employer in the Employer’s Reasons when dismissing Mr Doherty it still provided a valid ground for dismissal for serious misconduct.  

The Commission did not consider any of the Employer’s Reasons justified dismissal – except for the concerns regarding his presentation and actions on the worksite, in particular his return to work when unfit to do so. 

In this situation, the Commission found that reliance on numerous unsuitable grounds meant the dismissal was harsh – however, because Mr Doherty’s actions in attending the workplace while unfit to do so amounted to serious misconduct, the dismissal was not considered harsh in all the circumstances.  

This case is a good reminder that the Fair Work Commission will look behind the reasons provided to identify if there was a valid reason for dismissal and that attending the workplace when not fit to do so can, in some circumstances, amount to serious misconduct that justifies dismissal. 

Contact Griffin Legal’s team of employment law experts for further information on how we can assist your organisation.

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