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I reside in Australia and I'm currently working remotely. This week my employer felt I was no longer capable of carrying out my duties due to mental health issues, which were partly the result of my employment.

As I have no personal leave entitlements available at the moment he instructed me to take annual leave. I informed my manager that I did not have sufficient leave to cover the period and he told me to go into negative leave.

According to the Fair Work Ombudsman I don't believe he can do this. Three hours after instructing me to take leave effective immediately, he then sent me a text message instructing me to log out of the corporate network, shut down my computer and to not reconnect to the corporate network until next week.

The message caused me extreme emotional distress and now my family are saying that I'm acting a little crazy.

I've tried contacting a lawyer, but they wanted AU$690 dollars before they would talk to me. I'm thinking of applying for Workers Compensation for a psychological injury.

What's my best course of action?

I've also come across this article suggesting that they may be within their rights. I've also booked sometime next Friday with an employment lawyer to discuss my options.

I've just returned from the doctor's practice, and he's referred me to a psychiatrist. OMG, does anyone else here think I'm mentally unwell?

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    Comments are not for extended discussion; this conversation has been moved to chat. – Kilisi Jun 10 at 23:31
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    Since this point remains somewhat unaddressed so far I wanted to say: be careful not to attribute malicious intent to your employer. What your employer did could have been simply out of a wish to help you. Financial/leave situation notwithstanding, telling an employee (or coworker) to take a break, now can be the right thing. E.g. I have done so in the past for a colleague who was having a severe burnout and who was, at the time, wholly unable to see their own situation clearly. – fgysin Jun 11 at 5:32
  • @GlenYates my family and I are concerned for my mental health, even before covid our family was having a tough time at home, along with a forced resignation from a job I loved, and an unfair redundancy during the first week of our lockdown here in Australia. – user122949 Jun 11 at 23:05
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    @JonathanArcher Don't feel sorry for me, feel sorry for your family bud. – DranoMax Jun 11 at 23:09
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    Re "physiatrist" ("(medicine) A physician specialising in physical rehabilitation."): Given the context, do you mean psychiatrist? (Psychiatry - "(medicine) The branch of medicine that subjectively diagnoses, treats, and studies mental disorders and behavioural conditions")? – Peter Mortensen Jun 12 at 10:37
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What's my best course of action?

I see a lot of words like "mental health", "emotional distress" and "psychological injury" floating around there.

Mental health is no different than physical health. If you break a leg, you go see a doctor first and only then worry about how this fits in with your annual leave or worker council rules or your boss' opinion on all this. You certainly don't hire a lawyer while you are still bleeding.

So go see a mental health professional. Now. And then, after that, you can decide on a future course of action.

Your doctor would tell you how long you have to keep the cast and how long to not lift heavy things after your injury, your mental health professional will have similar recommendations.

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    Good point about seeing a mental health professional I'll contact my doctor now and make an appointment for a mental health plan – user122949 Jun 10 at 6:58
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    @JonathanArcher The most insidious part of mental health issues is that they often impair our judgement about what is best for us. If you break your leg, you don’t think “Well that hurts but I can still hop around on one leg so I’ll just act like everything is normal and wait to see if it gets better on its own”. but that is often what we do when we’re facing a mental health issue. – ColleenV Jun 10 at 13:07
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    @ColleenV: A friend of mine once broke her foot just before the end of a race. Because she carried on running (since she'd already ignored a whole load of pain to get to that point) her foot later required rebreaking and pinning instead of just healing properly. As an analogy for mental health it works quite well: If you've already 'manned up' and ploughed through so many mental issues that you've now broken under the strain, the fact that you broke at all can go completely unnoticed until the path to recovery is much longer than it needed to be. – Joe Bloggs Jun 10 at 14:06
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    @ColleenV I totally agree, my doctor thinks I might be suffering a little bit of mania, I disagree, I've never felt better sitting at my computer a 3am responding to messages on this question ;) Yes I realise I'm not the best person to judge my sanity at the moment that's why I've booked another session with my GP this morning to develop a mental health plan. – user122949 Jun 10 at 16:48
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    @JonathanArcher I’m glad you’re open to getting help and able to have a laugh about it :) – ColleenV Jun 10 at 17:12
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Your next step is to get in touch with Fairwork Australia. They will get you better advice or may even offer to act on your behalf.

IF you are not fit to work, and you run out of paid sick leave, then you're obligated to take unpaid sick leave. You need to determine what is better for you and your family, getting paid and using annual leave, or not getting paid, but not using leave.

Regarding the assessment of if you're fit to work or not, the company is not able to make that assessment. They are not medical professionals. They can, however, require you to see a doctor, that they pay for, who will assess your ability to work.

If that doctor decides you are not fit to work, your employer can put you on leave without pay.

I would recommend you work with your employer, because ultimately if this does go to court, any obstructionist behaviour by you will count against you.

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  • I felt perfectly fine to work reduced hours and only perform essential tasks such as 1:1's with my staff, who I think can vouch for me that I was just fine when they spoke to me on Monday and Tuesday, and to his credit, my boss in his text message did suggest seeing a doctor and to ask him how they could be support me. But the comment he made for me to step away from my computer and disconnect from the company network caused something to snap. There is a back story which involves a colleague verbally abusing me on more than occasion this week. – user122949 Jun 10 at 17:06
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    @JonathanArcher Don't read too much into your boss' comment, it's likely more of a legally-required notice than anything directed at you or the current situation. In a lot of places, employers can get in trouble if employees do anything remotely work-related while officially on certain types of leave, so he may have simply been repeating instructions given to him by the legal department. – bta Jun 10 at 21:14
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    @JonathanArcher You are claiming to be ill, let the medical professionals do the diagnosis and set up an appropriate work plan that you can present to your employer. You aren't in a position to claim how much you are fine to work - that's the job of a doctor. Imagine having a broken ankle, but claiming you feel fine to drive a forklift around. Clearly a serious problem for your employer if they actually let you do that. Mental health issues are no different, and possibly more insidious because the effects are not obvious. – throx Jun 11 at 0:06
  • From an European point of view, the fact that some worker is "obligated to take unpaid sick leave" when she/he is sick sounds very odd indeed. – Alessandro Teruzzi Jun 11 at 15:31
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    @AlessandroTeruzzi Only when they no longer have any paid sick leave remaining. – Gregory Currie Jun 11 at 16:15
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Your employer has a legal obligation to protect your safety at work. If they believe that continuing to work is creating a health risk for you, they may have a legal duty to forbid you from working until you can show that it's safe for you to do so (e.g. medical clearance), and refusing to cooperate with that requirement may be grounds for dismissal. Even if you are willing to keep working and take the risks, they are not allowed to let that happen.

Per https://www.hcamag.com/au/news/general/does-medical-clearance-mean-fit-for-work/153929 :

An employer has an overarching obligation to provide a safe working environment, and by not doing their due diligence (i.e. basing their assessment of an employee’s fitness to work on solid evidence) they risk incurring legal liability for any further sustained injuries.

However, an employer is well within their rights to insist on this step as a precondition to the employee returning to work, and even to eventually terminate an employee if they repeatedly refuse to cooperate with such a directive.

This has been confirmed in several recent cases, including Laviano v Fair Work Ombudsman [2017], where an employee’s general protections claim against the Fair Work Ombudsman (FWO) was dismissed. The employee refused to attend an independent medical examination 6 times, and failed to communicate with FWO during his extended absence from work due to a psychological condition. The Court found that FWO’s decision to dismiss the employee was not taken because of an unlawful reason.

In Grant v BHP Coal Pty Ltd [2017] the Full Court of the Federal Court found that a worker returning from a shoulder injury sustained on duty – who refused to attend a medical appointment nominated by his employer – was validly terminated. The Full Court found that the direction to see an independent medical specialist was consistent with the employer’s obligations under the Coal Mining Safety and Health Act 1999 (Qld), and that a failure to abide by this direction was reason enough to terminate the employment relationship.

If you're out of sick leave, and the employer isn't willing to give you special leave for this situation, then annual leave or leave without pay are the fallbacks.

It looks as if your doctor and family members are also concerned about your mental health, so it's possible that your employer is correct about this. (It's been a pretty rough 18 months for a lot of people.) But even if you could find a doctor to certify you safe to return to work, that might not be a good option.

Your employer has already made the call that you are "no longer able to carry out your duties"; if you were to provide them with evidence that this is not due to health issues, the next step might well be letting you go for underperformance.

Some options you could explore:

  • If you are diagnosed with a mental health condition, and you can establish that your work contributed to this, you might be entitled to worker's compensation (see a lawyer). (This is also part of why your employer doesn't want you keeping on working while sick!)
  • If you are concerned about running down your annual leave, you could talk to the psychiatrist and your employer about graduated return to work arrangements, e.g. gradually ramping up your work again and/or taking on duties that are safe for your mental health, if the nature of your work allows. This might reduce the number of leave days you need to take, but it needs to be a solution that will give you enough space for recovery.

Take care and be gentle to yourself.

ETA: In this other question you mention being "tired and stressed" to the point of being harsh/rude to an interview candidate and having to apologise. I am not a lawyer, but I suspect that kind of incident would be treated as pretty strong evidence to support your boss's position that you are unable to carry out your duties due to mental health issues. If seeking legal advice, it would be important to mention that as part of the context.

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  • The doctor has ordered me to take another week off work, so I have to accept that direction. He has also made an appointment for me to see a psychiatrist which I'm happy to attend. I do see how some of my actions at home could be seen as manic. However before the forced leave I believe a number of people would vouch for me that I was fine up until I was verbally abused by a colleague and force to take leave by my boss, I kind lost the plot after that and started acting manic at home. I agree it's been one hell of an 18 months. I was also made redundant at the start of our lockdown. – user122949 Jun 11 at 10:08
  • I have a appointment with a workplace lawyer next Friday to discuss a possible workers compensation claim, as there is a significant back story I have not shared here. This was the last straw for me and I broke under the pressure that's building since I started with the company. I wanted to leave a while ago, but the colleague who abused me, convinced me to stay. – user122949 Jun 11 at 10:11
  • That was a very interesting article to read, thankyou so much for sharing it – user122949 Jun 11 at 10:32
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If your work is causing you emotional distress, and your boss is asking you to take some time off for your own mental health, then I think your best course of action is to do as he/she says - take a holiday. Don't do any work-related stuff for a week and try to relax. Watch a movie, play a video game, read a book, have a nap, have a bath, whatever. If you are able to chill out a bit, it could help you feel better and make you a better employee too.

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  • Hi Robyn, that would be nice if I wanted to use my limited annual leave and had the leave available. Unfortunately taking the leave puts me into negative balance meaning I can't take a proper holiday with my family later in the year. Normally this would be covered under sick/personal leave. However I don't have any personal leave available. My doctor has now ordered me to take sick leave which I don't have, which means that I may be on leave without pay. – user122949 Jun 11 at 4:03
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    Your boss seems to be on your side. You are trading off your sanity now for a family holiday later. Not sure it's the right balance. – Sam Jun 11 at 13:47
  • @sam thanks you make a very good point, I hadn't considered it that way – user122949 Jun 11 at 16:58
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Buddy, calm down first! Nothing really happen at the moment! Even if bad things happen, it is not end of the world!

I don't think you need a lawyer at the moment. Because whatsoever, you are not fired, at least not yet.

Secondly, if you think you have a psychological issue (who said you have? Doctor? You? Or your manager?), then you go to a psychotherapist (because you said it is because of your work). Or else you could just walk out of your company network at the moment, go to a bar, and drink. Take it easy! Talk to your friend, or your family. You have many options.

After one day or two, you review your behaviour act to your coworker. Do you think you could still work with them in a normal relationship? If yes, then act like that. One week or one month is not a long time, and soon you will see if you could come back to work or not.

If they allow you come back, calm down and be nice to people. Otherwise if they don't, then you think of another option.

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  • Dude I'm perfectly calm and rational, and I'm seeking advice from trusted friends and colleagues in the real world too. I'm a little OCD which has now been combined with insomnia where I can fall asleep at night but wake again about 2am in the morning and spend the next couple of hours responding to comments on the workplace stackexchange ;) My colleague has severely damage our working relationship through verbal abuse, given the nature of that working relationship I don't feel it can be restored, feeling a little betrayed at the moment – user122949 Jun 10 at 17:15
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    @JonathanArcher Speaking from experience, you need to get your sleep schedule back to normal (for you) as soon as possible. It is the foundation upon which all other mental health is built. – ColleenV Jun 10 at 19:53
  • I have gone though what you are suffering now, everything is alright. Take it as good experience in your live, and don't trust your co-worker. It means only show your professional when you work(including hide your emotion), but never sharing your feeling to your co-workers (e.g "I think the boss is not treat me well"). "Life was like a box of chocolate ,you never know what you're gonna get.", The heart let go, everything is bearish @JonathanArcher – Micheal Jun 10 at 21:43
  • I agree my colleague has shared far to much personal information with me, more than anyone else I've worked with. I tried to help by sharing some of my own life experiences, but now I feel completely betrayed. I enjoy having friendships with colleagues at work and I tend to wear my heart on my sleeve sometimes. – user122949 Jun 11 at 10:17
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    @JonathanArcher It’s not something that will happen overnight (har-har) but it is worth the effort. Eventually you won’t need the melatonin at all. – ColleenV Jun 11 at 10:28
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Were his instructions in writing?

Make sure all your communications about the subject are in written form and that you save a copy of them on a personal computer (pay close attention to the policies and regulations your company has about protected information).

Contact a pro-bono organisation in your country if you cannot afford the fees of a legal consult.

Until you have written confirmation from your direct manager that you are obligated (according to him) to take unpaid leave, make sure you show up for work on time and complete all assigned tasks in a professional and timely manner. Hopefully by then you will have some kind of an answer from the pro-bono organisation.

If you have doubts about the legality of his requests, write him an email stating that in your opinion his request is illegal and ask him to consult with the company's legal department, and get their response to your legal concerns in writing.

If his request is biased and caused you emotional distress, or it's been done as a retaliation for some previous work-related incident, you should raise this case to your company's HR or Anti-Harrassment team (if one exists). If this is the case, document everything you can (in chronological order) about the respective and current incidents, attach any written communication about it and forward it as an email to your manager's manager, HR dept and anti-harrassment group. Also save that communication on a computer you own for safekeeping. Again, be mindful of any protected information.

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  • Yes I received a polite text message, to logout of MS Teams, Outlook and my laptop, and to then power it down, I felt like I was being virtually escorted from the building – user122949 Jun 10 at 6:56
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    I've got nothing to hide, I live in a democratic country exercising freedom of speech, I haven't defamed anyone, everything I've said is the truth, I'm not using a work computer, I share my reputation across the rest of stackexchange and have a great deal of respect for the community. I'm just seeking advice about my workplace rights – user122949 Jun 10 at 10:28
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    It was just friendly advice. Since you most probably do not have legal studies, you might not be able to understand what exactly constitutes defamation or what lengths your employer might go to to make your life difficult. Better safe then sorry IMO. Also, again, save copies of all conversations on a computer you control, not the company. Court orders can be a long way away and may never arrive. Also I hope you don't have to go to court. Also, if you foresee such scenario to occur, the Legal section might be a better spot for your question. – BoboDarph Jun 10 at 10:36
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    Good advice, my identity could easily traced back to my employer allowing any reasonable person to identify the company in question and therefore my boss, anyway I've always wanted to captain a starship :) – user122949 Jun 10 at 10:46
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    >> Contact a pro-bono organisation. This. Have you talked to Citizens' Advice Bureau or Legal Aid in your state? Also, Oz might be democratic, but find me a law anywhere that mentions our 'freedom of speech' – mcalex Jun 11 at 3:37

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