The WA Supreme Court has dismissed an appeal from a decision in the WA District Court which provides some guidance as to how to demobilise any employee displaying serious mental health concerns. 

Overview 

Zeljko Kerjavic was a contractor electrician based on Barrow Island, Western Australia. During the site inductions, the employee obtained the mobile phone number of the HSE manager. Without identifying who he was, he sent over 10 pages of text messages to the HSE manager that included concerns that ‘someone could easily release poison gas on the ship’, wide-ranging ‘criminal activity’, the presence of ‘mafia agents’ and that the ‘KGB had infiltrated the workplace’. The electrician also had concerns about the standard of accommodation on the ship. Chevron had done everything they possibly could to address the issues raised regarding his concerns for safety and the conditions with the living quarters on the ship. After several attempts of dispute resolution by the employer, Chevron made the decision to transport the employee to their independent GP for assessment. 

Medical Assessment 

After a four-hour consult, the employee was placed under a transport order (under the Mental Health Act) and referred to Fiona Stanley Hospital for psychiatric examination. The employee was forcibly removed by the WA Police and sedated for the flight home. Upon assessment, the employee was involuntarily admitted as a patient in Fiona’s mental health ward for 14 days for displaying symptoms of psychosis and mania. During the 14 days in Fiona Stanley the electrician continued to text the HSE manager, with one text stating he ‘felt like an overeducated Jew in a Nazi Camp’.

Court Claims 

The employee represented himself and brought appeal proceedings, alleging that his employer failed their statutory duty of care requirements due to being detained against his will and placed on a ‘flight ban’ list. He further claimed injury, loss and damage under a range of irrelevant legislation after being forcibly removed from Barrow Island by the WA Police. He also attempted to claim damage for loss of reputation from the incident. Chevron outlined they were acting in the best interests of the employee and others for the health and safety risk posed from a potential mental health issue. 

Outcome 

The Court ruled that there was no injury, loss, damage or miscarriage of justice and the that application be dismissed. 

Learnings 

  • All concerns raised by an employee, no matter how far-fetched, must be addressed and documented responses recorded. 
  • Any individual receiving discriminatory/abusive text messages from other staff members must raise with their direct manager. 
  • Employees suffering mental health issues can be demobilised from operations by a GP who arranges a transport order. The transport order requires police attendance. 
  • The WA Courts have now reaffirmed that an employer, upon advice from an independent GP, can demobilise an employee that raises a risk to health and safety to themselves or others from a potential mental health condition. 
  • We must continue to capture/document employees who are on either short or long-term medication. 

Case Notes 

Appeal: 

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASCA/2020/40.html?context=1;query=russian%20spies;mask_path=

District Court: 

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WADC/2019/9.html?context=1;query=Zerjavic;mask_path=