There are situations where an employee lacks the capacity to resign from their employment, e.g. where an employee is suffering from a severe mental illness or psychological condition so that they could not be considered to have the required mental capacity to resign from their employment.
In these cases, the agency head should treat the notice as invalid and proceed on the basis that the employment contract has not been terminated. In some rare cases where the mental incapacity of an employee is so severe, the notice of resignation may be taken to be of no effect at all. In those circumstances, it would not be open to an agency head to ‘accept’ the notice nor for the employee to retract it, as for all intents and purposes it would be taken to have never been given at all.
It is particularly important that the cases involving highly emotional employees and employees suffering from mental incapacity are dealt with sensitively, and agencies may consider a range of options including the offer of counselling, undertaking additional enquiries into the employee's situation, referral to the agency's Employee Assistance Program etc, before assuming the resignation is effective/valid. It is strongly suggested that agencies consider seeking legal advice should a situation arise involving the issue of an invalid notice or incapacity.
Termination of employment
See the Australian Public Service Commission guide ‘Terminating APS Employment: The legislative framework’ for information on termination when there is an inability to perform duties because of physical or mental incapacity.
Where an agency is considering offering voluntary retrenchment to an employee who is not fit for and not at work, the agency should be satisfied that:
• the employee is excess to requirements
• the appropriateness of termination on the grounds of physical or mental incapacity has been assessed and any request for invalidity retirement has been considered and determined by the relevant superannuation authority
• the Commonwealth is not exposed to unnecessary or increased liability arising under workers’ compensation legislation or at common law in relation to an illness or injury as a result of the agency offering, and the employee accepting, voluntary retrenchment.
Consider the requirements for invalidity retirement under the employee’s superannuation scheme—these are also set out in the Australian Public Service Commission’s guide on terminating employment.
• Australian Public Service Commission, Ability at Work: Tapping the talent of people with disability: <http://www.apsc.gov.au/>.
• Australian Network on Disability Manager’s Guide: Disability in the Workplace: <http://www.and.org.au/pages/publications.html>.
• For more information on assessing employee health see Conditions of Engagement: <http://www.apsc.gov.au/aps-employment-policy-and-advice/engagement/conditions-of-engagement>.
• Australian Public Service Commission, Terminating APS Employment—The Legislative Framework: .
• Work Health and Safety Act 2011, Roles and Responsibilities: .
Other relevant information sheets:
Supporting return to work
1 House of Representatives Standing Committee on Education and Employment 2012, Work Wanted: Mental health and workforce participation, HRSCEE, Canberra, p. 85, .
2 Royal Australasian College of Physicians, Australasian Faculty of Occupational and Environmental Medicine (2011). Realising the Health Benefits of Work: A Position Statement, RACP, Sydney, available at: .
3 Leach, L, Butterworth, P, Rodgers, B, Broom, D & Olesen, S 2010, ‘The limitations of employment as a tool for social inclusion’, BMC Public Health, vol. 10, p. 621.
8 Managing risks Managing work-based risks to mental health is a responsibility under federal law. Managers need to ensure work design and management practices do not harm employees’ mental health and wellbeing. Why it matters
Risks to mental health can arise out of the nature of work. This includes customer related stress, remote work, shift work and exposure to traumatic events.
Risks can also arise out of the context of work including poor team climate and poor quality people management practices such as lack of role clarity, poorly managed change, a breakdown in relationships and high work pressure and demands.
When risks to mental health are not addressed they can cause mental ill health, have an impact on employees and their families, and lead to workers’ compensation claims. It can also adversely affect team relations and productivity, absenteeism, employee turnover, accidents, and customer and client complaints.1
Managers have an important role in addressing work risks to mental health in the way they design and manage work, provide supportive leadership and foster an inclusive culture. Good work design can eliminate or minimise the major psychosocial hazards and risks associated with work. This will help to keep employees healthy and safe at work and create flourishing and engaged teams.
‘Healthy and safe by design’ is one of the key action areas as part of Safe Work Australia’s national Work Health and Safety Strategy 2012–2022.2 The Government needs to lead by example in fostering healthy, safe and productive working lives through the design and management of work.
Work Health and Safety Act 2011
APS agencies have an obligation to ensure the health and safety of workers.
Health is defined as physical and psychological health.
Officers must exercise due diligence to ensure that their agency complies with its duties under the Act.
While at work, workers must take reasonable care for their own health and safety.
See Safe Work Australia for more information on roles and responsibilities: .
How it’s done
Steps to manage risks to mental health and prevent psychological injury
Step 1 What is important?
Leadership awareness culture and commitment; management systems for monitoring organisational health; understanding your team and their work; and engaging employees in maintaining safe and healthy workplaces.
Step 2 Identify sources of potential harm
This may arise from the nature or content of the work (such as stress, aggression, remote work, shift work, exposure to traumatic events) or the context of the work (such as poor work, team climate, lack of clarity, poorly managed change and worker relationships).
Step 3 Assess the risk
Analyse organisational and work team information to understand the nature, extent and causes of potential harm. This process needs to take into account risks and hazards that may be present across all aspects of work, for example management practices, schedules and workstation design.
Step 4 Consult with employees to develop and implement a plan to:
Address the workplace factors that are risks of psychological injury
Make reasonable adjustments to support safe work performance.
Step 5 Monitor and review
State clear program objectives, set targets and performance indicators, monitor and review the program’s implementation, review the effectiveness of the program and use the review findings to inform refinements and improvements.
Source: Comcare publication,
Working Well: An organisational approach to preventing psychological injury, page 17.
Take a systematic approach
Work with your employees and human resources team to identify and manage the individual, team and organisational risks to mental health.
Employee-focussed approaches such as counselling, relaxation techniques and stress management training can help employees to develop greater resilience. However, approaches also need to address the team and organisational risks to mental health. A comprehensive approach to addressing risks will be more effective than approaches that only focus on an individual’s ability to manage stress.3
Risks to mental health are not recognised as easily as risks to physical injury. Work with your human resources team and use the results of employee surveys, absence data, grievances, focus groups, interviews and discussions with your employees to help you to identify risks.
Consultation with employees is critical to understand sources of work related stress and how they are impacting on the team. Most successful and cost-effective solutions are developed from within an organisation or team together with employees. This can be done through focus groups or other forms of consultation.4
Consultation with employees is required when identifying hazards, assessing risks and deciding on measures to control those risks.5
The United Kingdom Civil Service Health and Safety Executive (HSE) has identified six potential sources of harm related to the design and management of work that, if not managed well, can lead to mental ill health (refer to the diagram ‘What is important’ on this information sheet).6 This model has been adopted by both Comcare and the Australian Public Service Commission and
is used for reporting purposes in the Commission’s State of the Service Report.
You also need to consider risks that arise from the characteristics and nature of the work. For example, is the work customer-related, does it involve shift work, does it involve physical isolation, does it lack variety or is it time paced?