“Shabby, appalling, unconscionable”: ATO slammed for treatment of employee with mental health issues

The Fair Work Commission has criticised the Australian Taxation Office for the way it treated an employee with mental health issues.

As the private sector looks at methods for tackling mental health in the workplace, the government agency has come under fire from Fair Work Commissioner Bernie Riordan, who labelled the ATO’s conduct “shabby”, “appalling and “unconscionable” in the case decided earlier this month.

Brett McAuliffe, an employee of the investigations branch of the Sydney ATO, believed he had been bullied and harassed by managers after being absent from work due to “psychological issues” in August 2012.

As a result of the absences, McAuliffe was referred for a psychological assessment and was diagnosed with adjustment disorder, although he was later cleared by a psychiatrist to return to work by August 2013.

The decision, handed down by Commissioner Riordan, found ATO managers interfered with McAuliffe’s return to work; sending him home from work without reasonable explanation, deactivating his access pass and posting a photo of him at the security desk.

Riordan found McAuliffe’s manager, Jenny Giang, went on to deliberately misrepresent the opinion of the psychiatrist, mislead the employee, exceed her authority, ignore ATO policy and then “deliberately and mischievously delayed Mr McAuliffe’s return for another seven weeks”.

In his decision, Riordan slammed the conduct of Giang and the ATO as “appalling”.

“At a time when Australian society is focusing on the issues of mental health in the workplace, the actions of the ATO in this case were unconscionable,” said Riordan.

“I sincerely hope that an employee diagnosed with depression and anxiety in the future is not treated in the same shabby manner as Mr McAuliffe.”

The commissioner also criticised the ATO for bringing seven lawyers to a hearing.

“This can hardly be an appropriate expenditure of public money,” said Riordan. “The policy of the Commonwealth in refusing to consider conciliation in this proceeding was disappointing. This should be the subject of review.”

An ATO spokesperson said in a statement it was considering the decision.

“Due to privacy considerations we are unable to comment on individual staff members. We will review the case and our work practices to improve our processes where appropriate,” read the statement.

Andrew Douglas, partner at M&K Lawyers, told SmartCompany the ATO would have been successful if it had returned McAuliffe to work in a different section as recommended.

“A number of employers when they don’t like the response they get from a doctor try to shape that response into the evidence they want,” he says.

Douglas warns doing so can result in bullying the employee, discriminating against them and potentially committing unlawful industrial action.

“Most employers don’t get this and just feel they are putting a gloss on something they have got from the doctor,” he says.

“The lesson for employers is be honest when dealing with people who do assessments of your staff and live with the consequences.”