Managing return to work

Employers' return-to-work obligations

There are a number of different laws that impact on the management of employees returning to work after mental illness.

Anti-discrimination and Equal Employment Opportunity (EEO) law

What it is

EEO law aims to ensure that there is no discrimination or harassment happening in the workplace. It means that decisions about employment, including recruitment and promotion, are not affected by a person’s sex, race, age, disability, pregnancy, family responsibilities, sexual preference or marital status. Unlawful discrimination happens when a person is treated unfavourably at work because of these attributes.

The law and return to work after mental illness

As an employer you should not treat a returning employee less favourably because of their medical history. Exceptions may be made when a person with a disability is unable to perform the inherent requirements of the job.

An employer must also make reasonable adjustments for a returning employee. Under the Disability Discrimination Act 1992, an adjustment is considered reasonable unless it causes unjustifiable hardship to the employer or organisation. Unjustifiable hardship could be significant financial cost, an amendment to the physical building that is not possible due to council or other restrictions, or an adjustment that would unfairly disadvantage other employees.

More information

Australian Human Right’s Commission’s information on disability rights

The Fair Work Act

What it is

The Fair Work Act 2009 provides a framework for workplace relations in Australia. It covers terms and conditions of employment as well as rights and responsibilities of employees, employers and organisations.

Discrimination is prohibited under the Fair Work Act. The Fair Work Ombudsman can investigate and take action about workplace discriminatory practices that happened (or continued) after 1 July 2009.


The law and return to work after mental illness

Under the Fair Work Act full-time employees are entitled to 10 days’ paid personal leave (for sick and paid carer’s leave) per year. Part-time employees receive a pro-rata entitlement to sick leave based on the number of hours they work.

Under the Fair Work Act, an employer may not do, threaten, or organise any of the following:

  • dismissing an employee returning to work after mental illness
  • injuring the employee in their employment
  • altering the employee’s position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee because of their mental illness
  • discriminating against a prospective employee with a mental illness on the terms
  • and conditions in the offer of employment

More information

Fair Work Ombudsman

OHS legislation

What it is

OHS legislation aims to prevent illness and injury to workers. Employers must comply with the state, territory or Commonwealth legislation which applies to them.

The law and return to work after mental illness

OHS legislation covers an employer’s obligations are to provide a safe and healthy workplace for employees so they are not at risk of any accident or injury because of work practices. Should an employee suffer from a work-related injury or disease, the necessary support and assistance should be available.

More information

These responsibilities vary from state to state. Find out more information about employer rights and responsibilities in your state or territory.

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"In so many cases, managers or colleagues, they might think that there's a problem but they avoid it, they don't ask early enough. So by the time they do have the conversation, it's really difficult - people are on the back foot and it can get hostile. Managers need to be more proactive and have these conversations earlier. You can keep it low key, just check in with the person, ask them if they are getting the support they need."
HR Manager
*not her real name
"If someone broke their arm we wouldn't be worrying about whether or not we were liable, we'd just send them to the doctor. It should be the same for mental health problems."
OHS Manager
* not his real name
"Some employers think that if they accept that there is a problem, then that means they are accepting liability. Sometimes that stops them helping get employees into treatment. Actually they would be better off getting the person into treatment early - that's likely to reduce the risk of a stress claim. I recommend that where they can, employers offer to pay for two sessions of treatment without considering issues of liability."
Occupational Physician
*not her real name