Mental health issues are becoming a regular work place issue. Psychological illnesses in the workplace can be in the form of employees suffering mood disorders (such as depression and bipolar); anxiety disorders; substance use disorders and any common mental illness. Harassment and bullying behaviour (whether detected or undetected) leave employees suffering some level of trauma whether they are aware of it or not. There is an obligation for employers to provide a mentally healthy workplace.
These obligations derive their origins from common law and tort law. Under common law, if an employer fails to take reasonable care for the safety of an employee it may potentially be in breach its employment contract with the employee. The employee may be entitled to seek common law remedies of damages for such a breach of contract.
The common law recognises an implied term in an employment contract obliging the employer to the contract to take reasonable care for the safety of the employee, including the provision of a safe place of work and a safe system of work.
In tort, the employer is required to take reasonable care to avoid psychiatric injury to the employee. This duty will extend to workplace stress suffered by an employee if a reasonable person in the position of the employer could foresee the risk of stress causing psychiatric injury to the employee.
This article seeks to raise awareness for employers and employees in Queensland, in identifying employees that may suffer mental health issues and provide guidance on how employers may manage employees in such a way as to not breach legislation that protect employees with mental health issues.
Workplace Health and Safety Queensland
In Queensland, the Work Health and Safety Act 2011 (WHS Act) imposes a general duty on employers to ensure that the working environments of the employees are safe and without risks to health. This duty extends to risks to health and safety posed by psycho-social hazards in the workplace, such as stress, bullying and workplace violence. The WHS policy body, Safe Work Australia, recently issued a publication which defines workplace bullying as “repeated and unreasonable behaviour directed towards a worker or a group of workers creating a risk to health and safety”. The behaviour described includes:
- Abusive, insulting or offensive language or comments;
- Unjustified criticism or complaints;
- Deliberately excluding someone from workplace activities;
- Withholding information vital for effective work performance;
- Setting unreasonable timelines or constantly changing deadlines;
- Setting tasks unreasonably below or beyond a person’s skill level;
- Denying access to information, supervision, consultation or resources to the detriment of the worker;
- Spreading misinformation or malicious rumours; and
- Changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.
Workplace Health and Safety can investigate complaints that are about workplace harassment (not sexual harassment); covered by the Work Health and Safety Act 2011 and the Prevention of Workplace Harassment Code of Practice 2004.
The exception to this is reasonable management action conducted by the employer.
Fair Work Commission
For workers of a constitutionally-covered business, on 1 January 2014, the Fair Work Act 2009 (Cth) (FW Act) was amended to allow a worker who reasonably believed that they were being bullied at work to apply to the Fair Work Commission for an order to stop the bullying.
Workplace bullying has been defined as an individual or group of individuals repeatedly behaving unreasonably towards a worker or a group of workers at work, and that behaviour creates a risk to health and safety.
The behaviour has to be repeated and unreasonable (referring to the persistent nature of the behaviour and can refer to a range of behaviours over time) and must be considered cumulatively with respect to the risk to health and safety of the employee. Examples of bullying under this legislation include:
- Aggressive and intimidating conduct;
- Belittling or humiliating comments;
- Spreading malicious rumours;
- Practical jokes or initiations;
- Exclusion from work-related events; and
- Unreasonable work expectations.
The consequent effects are negative for an individual’s health and wellbeing such as depression, anxiety, and sleep disturbance.
The Fair Work Commission anti-bullying forum deals with these complaints and has a process in place. However, before such an application can be made, the complainant must ensure that they exercised and/or exhausted the internal grievance process within their workplace. The employee must notify the employer of ongoing workplace bullying, unless the person nominated to make the complaint to is the alleged perpetrator.
If the employee fails to obtain an appropriate remedy through the grievance process and/or the bullying persists, the employee can then apply to the Fair Work Commission for orders to stop the bullying.
The Fair Work Commission makes orders focussed towards resolving the matter and enabling normal working relationships to resume. The Fair Work Commission cannot order reinstatement or the payment of compensation or a pecuniary amount.
Employers can raise a defence of exercising reasonable management action. Employers must show that such action was taken in a reasonable way and is not workplace bullying. Managers can argue that actions undertaken were necessary to respond to poor work performance, discipline employees for misconduct, and direct and control the way work is carried out, provided that the action was reasonable.
Reasonable performance management requires the setting of reasonable person performance goals, standards and deadlines. It also requires any process of informing a worker about unsatisfactory work performance to be fair and constructive, objective and confidential – not aggressive, intimidating, belittling, degrading or humiliating.
Anti-Discrimination Commission Queensland
For employees who suffer from mental health issues, such as psychiatric depression, anxiety, schizophrenia and are currently working; the Anti-Discrimination Act 1991 [a5] (Qld) (Anti-Discrimination Act) protects their employment. It is unlawful under State and Federal Anti-Discrimination legislation for an employer to treat an employee who is suffering from impairment less favourably than it would treat another employee without the condition who is in the same or similar circumstances.
An employer may contravene the Anti-Discrimination Act if the discrimination is in indirect rather than direct. Indirect discrimination generally occurs where a condition, requirement or practice is imposed (or is proposed to be imposed) that has or is likely to have the effect of disadvantaging individuals with mental health issues, or with which a substantially higher proportion of persons without mental health issues can comply and is unreasonable in the circumstances.
Employers need to consider whether workplace rules and practices need to be adjusted in order to accommodate an employee suffering from mental impairment to work. Employers need to consider alternative ways of doing things and whether the criteria they use unjustifiably excludes persons with disability.
With anti-discrimination matters, the onus of establishing reasonableness of the requirement or condition generally rests with the employer.
Therefore, how do employers accommodate employees suffering mental illness?
Employers can commit to identifying and managing signs of poor mental health amongst workers. This can be done through monitoring employee workload, responding to bullying complaints, managing employee behaviour reasonably, actively seeking relevant information about impact of mental health issue on employee’s work performance.
Once this is done, employers should assess the risks by reviewing absences, monitoring productivity and seeking opinion surveys and feedback. If employees are stressed and get medical certificates or assessments on their condition, employers should obtain employee consent and seek medical information about the employee, treating it as genuine. Instead of employers waiting for Work Cover, deal with the matter independently.
Having assessed the risk, employers should then implement risk controls such as flexible work policies, mental health training, performance management training for managers and discuss access to Employee Assistance Programs.
The FW Act entitles an employee to request flexible work arrangements to accommodate disability (or to care for a person with a disability). Employers can refuse on reasonable grounds. There is a need to carefully balance this with the business needs and ensure that a decision is communicated efficiently.
Finally, in exercising caution, employers should not take adverse action against employees that are suffering mental health issues. In circumstances where employees’ misconduct or poor performance may be a symptom of a medical condition, discrimination or taking adverse action against an employee will be considered unlawful. Employers should carefully consider all relevant circumstances before making an informed decision.
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 That is a person conducting a business or undertaking (PCBU), conducted principally in a territory or commonwealth place, or where the person conducting the business or undertaking is a constitutional corporation or businesses usually enterprises operated with the aim of making a profit, and have a degree of organization, system and continuity.
 Grant v State of Victoria (Office of the DPP)  FCCA 17