What are my rights?

The right to protection from discrimination

If you have a mental health condition, certain laws protect you against discrimination in the workplace.

The Australia-wide Disability Discrimination Act 1992 (Cth) and equivalent state and territory laws make it unlawful to discriminate against, harass or victimise people with disabilities – including in an employment context.

Let's start by looking at some of the terminology. 

The term ‘disability’ is broadly defined and includes mental health conditions:

  • whether temporary or permanent
  • whether past, present or future
  • whether actual or just assumed.

In a workplace setting, discrimination could occur:

  • during the recruitment processes, in advertising, interviewing and selecting candidates
  • when determining terms and conditions of employment such as pay rates, work hours and leave
  • in selecting or rejecting employees for promotion, transfer and training
  • through dismissal, demotion or retrenchment.

Employers are obligated

by law to provide a safe and healthy workplace

The Act defines ‘discrimination’ to include both direct and indirect discrimination. This means an employer’s failure to make reasonable adjustments for a worker with a mental health condition may constitute discrimination, even when on the face of it no ‘direct’ discrimination has occurred.

The Australian Human Rights Commission has developed a brief guide to the Disability Discrimination Act 1992 (Cth). 

The right to privacy

Your right to privacy is covered by the Australia-wide Privacy Act 1988 (Cth) and similar legislation in some states and territories.

If you tell your employer you have a mental health condition, they can’t disclose this information to anyone without your consent. They can only use this information for the purpose for which you told them, such adjusting your role or working environment to make allowances for your mental health condition.

The right to a healthy, safe workplace

Workplace health and safety legislation requires employers to ensure that workplaces are both physically and mentally healthy for all employees. This means steps must be taken to ensure that the working environment does not harm mental wellbeing or aggravate an existing condition.

Under each state’s work health and safety (WH&S) legislation, your employer is obligated, so far as is reasonably practicable, to provide a safe and healthy workplace. This means they must take action to prevent or lessen potential risks to the health and safety of you and your colleagues, including your mental wellbeing.

In practice, this gives you a right to working conditions that do not cause a mental health condition or aggravate any existing mental health condition.

Get an overview of existing and proposed WH&S laws at SafeWork Australia.

What are my responsibilities?

If your mental health condition does not affect how you do your job, you have no legal obligation to tell your employer about it. This applies whether you are a current employee, or a potential employee going through the recruitment process.

WH&S laws protect your right to a safe workplace, but you also have responsibilities under the same legislation. You must take care of yourself and others and cooperate with your employer in matters of health and safety. This applies to all workers, whether they have a disability or not.

As well as this, under the Disability Discrimination Act 1992 (Cth) your ability to work safely is an 'inherent' or essential requirement of any job. If your disability could reasonably be seen to create a health and safety risk for other people at work, then your failure to tell anyone about that risk could be a breach of your obligations under WH&S legislation.