Author: Ashleigh Mills
In recent years there has been an increased focus on the existence of mental health issues – and what can be done about addressing those issues – in both personal and professional spheres.
近年来人们对于不管是在生活还是在工作中的精神健康问题，以及要采取什么样的措施来解决这些问题都越来越关注。
In the workplace, it has meant that employers are increasingly being encouraged to identify the signs of mental health issues at work and to foster a culture of communication about those issues amongst its workforce. However, as a recent case decided before the NSW Civil and Administrative Tribunal (NCAT) illustrates, employers must take particular care when addressing concerns raised internally about an employee’s mental health.
在职场上，用人单位越来越受到鼓励去识别工作中的精神问题，并培养一种让员工可以对这些问题进行交流的企业文化。然而，从新南威尔士州民事与行政仲裁庭（英文缩写：NCAT）一起案件的裁决看来，用人单位在解决企业内部对于员工的精神问题的担忧时必须小心谨慎。
The facts 案件回顾
In Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106, Ms Stefanac was awarded compensation after her complaint of “assumed disability” discrimination was upheld by NCAT. Ms Stefanac, a case worker at the Department of Family and Community Services, had been directed to take a period of ‘sick leave’ after concerns had been raised internally about her mental state.
在《Stefanac与家庭与社区服务局[2018] NSWCATAD 106》一案中，Stefanac女士就“假定疾病”歧视的起诉得到了NCAT的支持并获得赔偿。Stefanac女士是家庭与社区服务局的一名个案管理员，在单位内部对其精神状况产生质疑后被指示请“病假”。
In particular, Ms Stefanac was said to have had a number of conversations with colleagues at the Department in which she had spoken openly of various conspiracy theories. Those conversations were alleged to include statements to the effect that:
具体来说，Stefanac女士多次与同事在局里对话时公开讲到各种阴谋论。据称这些对话包含大意如下的内容：
• a planet or meteorite was heading towards earth
• 有星球或陨石正向地球靠近
• the government knows about this but is covering it up.
• 政府知道这一消息但进行了隐瞒
These conversations were internally reported to the employer’s human resources department.
这些对话被内部上报至局里的人力资源部。
Based on concerns held by the Department, including that Ms Stefanac’s role as a ‘case worker’ involved the care and management of vulnerable children, a direction was issued to Ms Stefanac that she take ‘sick leave’ until a determination was made as to her fitness for work moving forward.
基于局里的担忧，以及Stefanac女士作为“个案管理员”需要关怀并管理困难儿童的工作性质，Stefanac被指示休“病假”，直到确定其能胜任往后的工作。
Ms Stefanac did take a period of leave before being formally certified to return to work by her treating practitioner. At all times Ms Stefanac maintained that she did not have any medical issues relating to her mental state.
Stefanac女士确实休假了一段时间，并在其主治医生正式出具证明后返回了工作岗位。在此全过程Stefanac女士否认其精神状态有任何疾患。
Ms Stefanac lodged a discrimination complaint to NCAT on the basis that she had been discriminated against as a result of a perceived or assumed disability, being, in this case, that Ms Stefanac was suffering from a mental health illness.
Stefanac女士向NCAT提起歧视诉讼，声称其因为猜测的或假定的疾患，此案中即精神疾病，而受到了歧视。
The findings 结论
In considering the complaint, NCAT considered the relevant sections of the Anti-Discrimination Act 1977 (NSW) (the Act), including, relevantly, that the definition of disability in the Act included that of an “assumed” disability.
在考虑这起诉讼时，NCAT考虑了《1997年新南威尔士州反歧视法案》（简称法案）中的相关条款，包括相关的对疾患的定义，包括“假定”疾患。
The Tribunal ultimately found that:
仲裁庭最后认为：
• the disability – being the mental illness – had been assumed by the Department and was not otherwise substantiated in the circumstances
• 疾患——即精神疾病——当时是家庭与社区服务局假定而没有其他实质性的证实
• at least one of the reasons that the Department had directed the employee to take Sick Leave was because of the assumed disability
• 指示员工休病假的至少其中一个原因是假定的疾病
• the direction caused detriment to Ms Stefanac, including at a minimum, because it resulted in an injury to Ms Stefanac’s feelings.
• 这样的指示对Stefanac女士造成了损害，包括最低限度的损害，因为这导致Stefanac女士的情绪受到伤害。
NCAT ordered the Department to pay $20,000 to Ms Stefanac in compensation for pain and suffering, but did not require the Department to issue a formal apology as had been sought by Ms Stefanac. In addressing that issue, NCAT did note that the Department had genuinely thought that Ms Stefanac had a mental illness at the time of making the direction.
NCAT下令家庭与社区服务局向Stefanac女士支付$20,000澳元赔偿其经受的伤痛与苦楚，但不要求其发表Stefanac女士索求的正式道歉。在处理该问题时，NCAT注意到家庭与社区服务局在做出决定时确实以为Stefanac女士有精神问题。
The lessons 前车之鉴
This case serves as an important reminder to employers that concerns relating to an employee’s mental health should always be approached with caution and in accordance with internal policies and procedures. In particular – and either directly or indirectly – the case raises a number of broader questions. Some of these questions are flagged below.
该案件重申了很重要的一点，即用人单位在处理员工的精神健康时需要时刻谨慎，且遵守内部的政策及规章。尤其，该案还或直接或间接地涉及了一些更广泛的问题，在此列举部分如下：
• Ability to issue lawful and reasonable directions
• 授予合法合理的指示的能力
When dealing with ill or injured employees (or in this case, assumed to be ill or injured employees), a key issue will always be what will and what will not constitute a lawful and reasonable direction. Commonly this issue will arise where an employee who has been on extended sick leave is directed to obtain a medical clearance for fitness to work before returning to the workplace. Generally speaking, and subject always to the facts of the case, this will constitute a lawful and reasonable direction of the employer.
在处理生病或受伤的员工时（或者像此案中，假定生病或受伤），主要问题永远都是什么会构成合法合理的指示而什么不会构成。通常该问题将在员工长期病假而在返回岗位前被指示获取医疗证明以表明其健康状况适合工作。虽然案情总是决定因素，但一般来说，这将构成用人单位合法合理的指示。
In this case, however, the relevant ‘direction’ was made in circumstances where Ms Stefanac had not already been on a period of requested and/or approved sick leave and had not herself asserted that there was any medical condition from which she was suffering. It was in that context, that the direction was held to be unlawful.
然而，此案中相关指示是在Stefanac女士还没有要求或被批准休假一段时间，且她自己也没有声称自己正在经历健康问题。鉴于此，该指示被认为非法。
• Limits on the duty to ensure health and safety?
• 对保障健康与安全的职责的限制
An employer will always have a duty to ensure the health and safety of its workforce. However, and as this case illustrates, that duty does not operate to the exclusion of other obligations and statutory duties owed by the employer to its employees.
用人单位有责任保障工作场所的健康与安全。然而，正如此案所示，这种责任的履行不排除用人单位对员工负担的其他义务与法定责任。
In other words, the Department was not entitled to assert that it was discharging its duty to ensure the health and safety of its employees, because the actions it took were held to impinge upon Ms Stefanac’s right not to be discriminated against in the workplace.
换言之，家庭与社区服务局没有权利声称是在履行保障其员工的健康与安全的责任，因为其采取的行动被认为侵犯了Stefanac女士不被工作场所所歧视的权利。
• Importance of procedural fairness • 采取公平程序的重要性
Employers must ensure that, to the extent possible, the processes followed in managing employees accord with the principles of procedural fairness. This includes processes relating to the management of ill or injured, or assumed to be ill or injured, employees.
In this case, the Tribunal was not required to make a determination about the fairness or otherwise of the Department’s protocols or procedures, however Ms Stefanac’s allegations that she was not given an opportunity to discuss the Department’s concerns with her supervisor nor was she given a copy of the letter that was provided to her treating practitioner were noted.
用人单位必须尽可能地保证管理员工的程序符合公平程序的原则。这包括管理生病或受伤，或被假定为生病或受伤的员工的程序。此案中，仲裁庭没有被要求裁决家庭与社区服务局的规定或程序的公平与否，却注意到了Stefanac女士声称其没有机会与其上司讨论有关局里对她的担忧，也没有拿到局里发给其主治医生的信件的副本。
• Diversity in the workplace
• 工作场所的多元化
Workplaces are diverse environments which are inherently made up of people who are different. In that context, it is critical that a distinction is always drawn between behaviour and conduct that is inappropriate and/or unacceptable, and behaviour or conduct that is simply different to that which the employer, or senior management of the employer, is personally accustomed to. If the latter, it will need to be treated and respected as such.
工作场所是一个多元化的环境，自然由各种不同的人群组成。因此，一定要时刻区分不恰当或不能接受的行为与和雇主或高层领导个人习惯的行为不一样的行为。如果是后者，则需要以尊重的态度对待。
The issues and areas highlighted above are ones commonly encountered by us as part of our workplace relations and safety practice. If any of these issues are of interest to you or your organisation, or you would like further information, please contact us to discuss.
以上讨论的问题是我们从事劳资关系及工作场所安全工作的人常见的问题。如果这些问题关系到您或您的单位，或您希望了解更多相关信息，请随时联系我们。
Author: Ashleigh Mills
Contacts:
Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com
Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com
Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com
Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com
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