Your rights at work when dealing with mental health problems - from the Fair Work Ombudsman

27 February 2020

Under Australian workplace law, employees - and prospective employees - are protected from unlawful workplace discrimination. This is when an employer takes, organises or threatens ‘adverse action’ because of one of 13 personal attributes, including physical or mental disability.

Disability is the number one attribute leading to complaints investigated by the Fair Work Ombudsman. Many of these matters relate to mental health issues such as anxiety and depression.

Disability discrimination is not okay and the Fair Work Ombudsman can help.

Since the introduction of the Fair Work Act 2009, disability, including physical and mental health problems has been the number one issue leading to discrimination complaints received by the Fair Work Ombudsman.

In 2011-12, a quarter of all complaints investigated related to disability, and many of the complainants identified mental health concerns such as anxiety and depression as the basis for the discriminatory behaviour.

The Fair Work Act protects employees who are dealing with mental health problems from unlawful workplace discrimination. This is when an employer takes adverse action against the employee on the basis of his or her mental health problem or disability.

Adverse action includes:

  • dismissing an employee
  • injuring the employee in his or her employment
  • altering the position of the employee to the employee’s prejudice
  • discriminating between the employee and other employees of the employer
  • refusing to employ a potential employee
  • discriminating against the potential employee in the employment terms and conditions offered.

Some examples of what adverse treatment can look like are:

  • being offered different (and poorer) terms and conditions of employment to other employees
  • verbal or physical abuse from an employer or colleagues
  • being isolated or excluded by colleagues or managers
  • being paid differently from and/or more poorly than people who work in the same role and have the same experience as you
  • being given much more unappealing/difficult duties than other people in the same role as you
  • not being provided with adequate equipment or facilities
  • having limited or no opportunities for promotions, transfers, or training.

It’s important to remember that sometimes it is lawful to treat someone differently. Treating someone differently isn’t necessarily discrimination - it can be to allow for individual needs, which isn’t adverse action. For example, providing more rest breaks for pregnant employees isn’t adverse action. This is good management and meets other legal obligations such as occupational health and safety laws.

Adverse actions aren’t always discrimination either. They can be for lawful reasons that have nothing to do with someone’s personal characteristics (such as their race, religion or sex - see Discrimination for the full list of characteristics).

Under the Fair Work Act, it’s not discrimination if the actions:

  • are allowed under State or Federal anti-discrimination law that applies in the State or Territory where it happened
  • are based on the ‘inherent’ (necessary) requirements of the job which will differ by job
  • are taken against an employee of a religious organisation to avoid harming the organisation’s religious beliefs.

Discrimination can also often be confused with bullying and harassment. Under the Fair Work Act, discrimination happens only when there is adverse action because of a person’s characteristics such as their race, religion or a disability.

If the adverse action isn’t based on one or more of the 13 categories of personal attributes, it isn’t discrimination, but it could be bullying or harassment.

The Fair Work Ombudsman can investigate bullying and harassment because of one of the 13 characteristics listed in the Act. If you’re being bullied or harassed at work for any other reason, or for no reason, you can get advice and help from your local occupational health and safety (OHS) body.

These are complex issues which have the potential to cause significant stress and anxiety for people at work.

Visit to find out more about workplace discrimination and how the Fair Work Ombudsman can assist.

Or call the Fair Work Infoline 13 13 94, Mon – Fri 8.00am – 6.00pm local time.