Diagnosis doesn’t negate “bare minimum” respect for others: FWC

In August, a senior member of the Fair Work Commission endorsed the sacking of a Services Australia employee who repeatedly demonstrated poor customer service and directed “insulting language” towards colleagues and managers, rejecting the employee’s claims that her ADHD diagnosis caused others to misinterpret her actions or “scapegoat” her. 

The employee had worked as a Services Officer (SO) for approximately two years when her problematic behaviour towards customers and fellow staff escalated in its severity and frequency. The SO was witnessed to have raised her voice with customers on numerous occasions in November and December 2024 but was resistant to feedback that she had fallen short of the expected standard of customer service in these interactions. The SO conceded there were a small number of “regrettable” instances in which she behaved inappropriately towards her coworkers, but for the most part insisted that the “severity” of her responses might have been “mitigated” if she had been properly supported in light of her “disability”. The SO was stood down on pay just prior to Christmas 2024 and a protracted investigation commenced. The SO was instructed to keep the investigation confidential and directed not to contact any of her colleagues whilst she was suspended.

As the investigation progressed into 2025, the employer learned the SO had repeatedly flouted the direction not to contact coworkers during March. The SO was confronted with evidence of text messages in which she had referred to her manager as a “creep” and, in reference to the investigative process specifically, had commented that “their directions can eat a bag of day old d**k”. After allowing the SO a chance to respond, the employer converted the SO’s suspension to ‘without pay’ in April 2025.

The SO remained suspended without pay over the coming months, and although the investigation had concluded by May, the outcome and determined sanction could not be communicated due to her deteriorating mental state. The SO disclosed threats of self-harm via direct emails and screenshots of social media posts which triggered multiple welfare checks carried out by Queensland Police at the request of the employer. The SO’s pay was reinstated from 1 July 2025, on the express condition she attend for a fit-for-duty (FFD) assessment on 17 July, but the SO insisted she would not participate, describing it as “discriminatory and an abuse of process”. Following her refusal to complete the FFD, the SO was afforded a show cause process throughout July, and the decision to terminate her employment as of 4 August 2025 was communicated via her treating psychiatrist.

At the outset of his 85-page decision, which traversed extensive detail pertaining to the final year of the SO’s employment, Deputy President Lake indicated he was “sympathetic” to the employee and hoped she received appropriate support in the light of her various references to “suicide attempts”, but he was unable to conclude her dismissal had been unfair. The Deputy President was satisfied the SO’s repeated “inappropriate behaviour” towards customers and co-workers coupled with her failure to comply with a lawful and reasonable direction (in reference to the investigative process) provided the employer with a “strong valid reason” for dismissal. 

In considering the impact of her ADHD diagnosis and the SO’s submission that she was effectively terminated for being “opinionated” – she had written in one email that “being pretty and having an opinion terrifies weak people” – Deputy President Lake observed that, “you can be opinionated without disrespecting and denigrating others.” “An ADHD diagnosis, or feeling overstimulated, is not a licence to verbally abuse others at work without consequence,” he added.

The Deputy President was satisfied sufficient accommodations were made for the SO in reference to her diagnosis, but he noted she rarely availed herself of the supports the employer offered. He further assessed the SO displayed only “superficial insight” into the impact her behaviour had on others, electing to downplay comments that were “threatening and disturbing” as merely “off colour”. The Deputy President went on to conclude:

“Even if I accepted that the [SO’s] conduct was caused by her ADHD, I accept the [employer’s] submission that being able to comply with the APS Code of Conduct is an inherent requirement of the role. The [SO’s] ADHD might explain her behaviour, but it does not erase the effect that behaviour has on others. The [employer] has a duty of care to provide a safe workplace for its employees, including by addressing risks to their psychological safety.”

Deputy President Lake reinforced these sentiments and later summarised, “it is the bare minimum for an employer to expect that an employee will treat others with respect.”

Although the investigation process was drawn out, the Deputy President determined it was not “unduly” long, particularly as additional allegations arose during the process, which could not be immediately put to the SO for response. He also acknowledged that imposing the unpaid suspension put the SO in a “difficult” position but determined the relevant decisionmaker had acted within her rights when weighing this sanction before it was implemented.

Having determined the SO’s termination was not harsh, unjust or unreasonable, the Deputy President dismissed the application.

Stunden v The Commonwealth of Australia, as represented by Services Australia [2026] FWC 3240 (25 August 2026)