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Work Demotion After Disclosing Depression

Discussion in 'Employment Law Forum' started by benmarch, 22 July 2014.

  1. benmarch

    benmarch Member

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    Recently I was unfairly demoted at work after disclosing mental health issues to my boss. Am i eligible to sue for this action?

    The timeline to this event is as follows:
    - annual review come up
    - boss noticed I was under a lot of pressure due to being managed by him and his boss at the same time with no clear direction
    - he tells me he wants to strip back all my managerial roles and take me back to the base job role because I can't cope
    - I disclose I have mental health problems and have been seeing medical assistance for depression
    - he then says this will be the best way for me to move forward and there is no other option for me as they are giving my job to someone else
    - I have no say about keeping my current role and am demoted to a entry level
    - I am now more depressed and stressed than I ever have been due to this


    Can anybody please give employment law advice on any action I can take against that employer?
     
  2. AnnaLJ

    AnnaLJ Well-Known Member

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    Hi Benmarch

    It's possible that what your employer has done would be considered discrimination. According to discrimination law:

    "Discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute."

    'Mental disability' is a listed, protected attribute (and I am assuming your condition is diagnosed). There is an exception to discrimination where your 'protected attribute' is a necessary requirement of the job. Though I think that's a highly subjective question in this case.

    Demoting you and taking away your managerial responsibilities would likely be considered 'adverse action' which is defined as follows:

    Adverse action includes doing, threatening or organising any of the following:
    • firing an employee
    • injuring the employee in their employment, eg. not giving an employee legal entitlements such as pay or leave
    • changing an employee's job to their disadvantage
    • treating an employee differently than others
    • not hiring someone
    • offering a potential employee different and unfair terms and conditions for the job compared to other employees.

    Even if you hadn't disclosed your depression, it still doesn't appear that your employer had taken the right steps in changing your job responsibilities. So discrimination aside, I think you would have some alternative rights under employment law.

    My advice, would be to contact Fair Work Australia, as they are a free, Government service who specialise in this area and can give very thorough advice on the action to take.

    http://www.fairwork.gov.au/

    Best of luck,

    Anna
     
  3. Tim W

    Tim W Lawyer

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    I agree with Anna LJ above.

    A few questions if I may, just by way of background and context...
    and which might be examples of the adverse action to which Anna refers.
    1. Are you being paid less than before the disclosure?

    2. Has your job title changed? If so, could it be mistaken for a demotion?

    3. Have you been given different work, in place of that which has been taken from you?

    4. Has any of this drawn any attention/ comment from colleagues?

    5. Has there been any non-monetary loss of status?
      (for example, have you had to give up a private office,
      or lost your company car/ computer/ phone,
      or been made to wear a different uniform?)
     
  4. benmarch

    benmarch Member

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    thanks for the replys guys

    TIM:

    in answers to your questions

    -no loss in pay
    -my job title has changed
    -my base duties have not changed. just had all extra work taken from me and spread over 3 people in the team, and the person i hired less than a year ago is now my boss
    -this has drawn attention from all team members as well as others in the work place and all my clients
    -i have ha my desk and computer taken away and moved to a desk where there are only 2 computers shared between 6 people.

    honestly my sanity and mood has taken a huge hit, and its hard for me to get into work with a smile on my face. i really have nothing to look forward too when i wake up apart from coming back home again.
     
  5. Tim W

    Tim W Lawyer

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    Lawyers talk about a thing called a "constructive demotion".
    Depending on the facts and circumstances, a constructive demotion
    can be the kind of "adverse action" referred to above.

    If you in time-frame, have a word to FWO.
    If not, start reading about discrimination (there is a limited number of categories)
    and think about whether or not that may have happened to you.

    Bear in mind that your disease (which is a genuine condition),
    may not amount to a "mental disability" of the kind contemplated by the FWA.
     

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