Under Commonwealth anti-discrimination law, people with ‘disability’ includes people with mental health conditions. This provides legal safeguards to protect people against discrimination through the recruitment process. While those safeguards are important, good practice often calls us to go beyond bare legal obligations to plan for positive and encouraging recruitment processes for people with mental health conditions.
The ability to make reasonable adjustments enables you to confidently recruit people with a diverse range of health conditions, including people with adjustment requests related to mental health. Many employees will not reveal a prior mental health condition before they are selected for a role because they fear indirect or unconscious bias—which is prevalent in broader society.
A person might disclose a mental health condition if they require a change or modification to standard employment conditions. They can ask for reasonable adjustments at any time, including before interview, for a change to the selection process. When considering what is reasonable consider the following:
• Identify inherent requirements—job descriptions and selection criteria need to focus on the inherent requirements (what needs to be achieved) of the role, not the way the role is performed.
•Fairness for each applicant—use objective criteria and value diverse experiences and backgrounds. Nothing in the APS merit principle prevents managers from making adjustments to selection processes to accommodate the needs of people with disability. Merit-based selection is not about complying with a process but about establishing an environment where all candidates can present their claims fully, without the process itself becoming a barrier. The merit legislation allows for adjustments to accommodate the needs of people with disability, including mental health conditions.
• Ask the applicant what adjustments would be most suitable and consult with them through the process.
• Ask questions related to the ability and suitability to do the job—you can only ask questions about disability or mental health conditions if it is related to the inherent requirements of the job, or to identify reasonable adjustments that can be made in the workplace to support the applicant to perform the role.
• Test for work related capability—be flexible with assessment options and consider making the interview an informal chat, putting a greater emphasis on referee reports, providing questions to the applicant in advance and asking for answers in writing. If you become aware that a method of assessment is disadvantageous to an applicant, discuss this with the applicant and agree on a new method. ‘When I was offered a job in my current agency, I disclosed that I had bipolar disorder. I was asked to go for a pre-employment medical assessment, then my offer of employment was confirmed. On my doctor’s advice, I work from home one day each week, and I start work late and finish late. Some of my medication makes me groggy in the morning, and this arrangement allows me to work when I am at my best.’
• Provide opportunities for challenging tasks where employees can learn skills and contribute to meaningful work.
• Support and enable career advancement through higher duties, moves at level and promotions based on merit.
Assessing employee health
There may be occasions when, as a manager, you believe that it would be appropriate for an assessment to be made of an employee’s fitness to perform their duties. If this is the case, you are advised to seek the assistance of your human resources team.
There are obvious sensitivities attached to requiring an employee to attend a medical assessment, and the employee should be kept fully informed of the reasons for this course of action and the process that will be followed.
The Public Service Act 1999 and Public Service Regulations 1999 set out certain requirements relating to assessing the heath of an employee, whether as a condition of engagement or to assess the fitness for duty of a current employee. These requirements are summarised here.
Directing existing employees to attend a medical examination
In accordance with the Public Service Regulations 1999, an agency head may direct an employee to undergo a medical examination if they believe that the state of health of the employee:
• may be affecting the employee’s work performance
• has caused, or may cause, the employee to be a danger to other employees or members of the public
• may be affecting the employee’s standard of conduct.
As part of their ‘duty of care’ responsibilities, an agency head may direct an employee to undergo a medical examination where they are to be assigned new duties and the agency head has reason to believe their state of health may affect their ability to perform those duties.
Pre-employment health checks
It is up to the agency head (or delegate) to decide what evidence they require to be satisfied that an employee is fit for duty. Evidence could include a declaration of health status, report from a treating practitioner, a medical examination or other specialist health professional assessment.
Health clearance as a condition of engagement
One purpose of a health clearance is to satisfy the agency head that the employee has the capacity to perform their duties. Other purposes may be to find out any information relevant to meeting the employer’s duty of care under workplace health and safety legislation and to identify any reasonable adjustments that are needed for a person with disability. For further information see ‘Conditions of Engagement’ at: <www.apsc.gov.au>.
Keep all personal health information private and confidential.
Separating from the APS
Withdrawal of notice of resignation
See the Australian Public Service Commission’s webpage on resignation: <http://www.apsc.gov.au/aps-employment policy-and-advice/separation/resignation> for details on resignation from the APS.
In accordance with common law, an APS employee has no unilateral right to withdraw a valid notice of resignation.
A notice of resignation may only be withdrawn with the agreement of the agency head. There is no requirement that an agency head agree to a valid notice being withdrawn—the agency head is free to decide not to agree if he or she so chooses. It is important to note agreement can only be given to a valid notice being withdrawn beforeit takes effect, i.e. during the notice period.
There are circumstances where it would generally be appropriate for an agency head to consider agreeing to the withdrawal of a resignation. For example:
Situations may arise where an employee is in a highly emotional state and they submit their resignation in the ‘heat of the moment’.
Where an employee gives notice of resignation in these circumstances, and then quickly withdraws it, it would usually be appropriate for an agency head to ‘allow’ the notice of resignation to be withdrawn or to treat it as invalid and not accept it, and to proceed on the basis that the employment relationship has not come to an end.
Where an agency head does not allow the resignation to be withdrawn, or where an employee does not seek to withdraw it before the resignation takes effect, the employee may still be able to argue, upon recovery from the emotional state, that the resignation should be able to be retracted upon recovery from the emotional condition.
However, legal precedents indicate that the exception is narrowly confined in these circumstances so that it will apply only if the notice is retracted as soon as the employee recovers from the emotional condition.
There is support for the view that the longer the time that elapses between the giving of notice and the subsequent withdrawal, the more unlikely that the resignation would be considered to be invalid.
This same reasoning would apply where a notice of resignation is provided by an employee following unreasonable pressure from the employer, that is, where elements of duress may be present.