Put in place policies to reduce mental illness and litigation
09 March 2009 8:57am
Employers can minimise the development and aggravation of workplace mental illness and dramatically reduce their exposure to litigation by putting in place an employee assistance program and developing a clear anti-bullying policy, according to workplace lawyer Greg Robertson.
"We are seeing a significant increase in mental illness cases amongst employees in many... sectors as the economic situation deteriorates and redundancies and rumours of redundancies take hold," says Robertson, of Harmers Workplace Lawyers.
"This high anxiety situation may have serious legal and productivity related ramifications for businesses."
Robertson says that employers have a common law duty of care and a statutory duty under OHS legislation to ensure the health and safety of their employees. This includes an obligation to take care of workers' mental health.
A failure to do so, he says, can leave employers exposed to prosecution for anti-discrimination or OHS breaches, breach of contract claims and other actions based on company negligence.
Implementing strategies directly aimed at reducing mental illness will not only see a drop in psychological-disorder rates but will also serve to protect the employer in the event of litigation.
"If employers can show they've behaved quite reasonably they're unlikely to be found to have breached their duty of care," Robertson says.
He advises employers to implement:
an employee assistance program, where employees have an avenue to raise issues and receive counselling;
a clear anti-bullying policy, in which workers are encouraged to speak up and report bullying incidents and understand there are no repercussions for failing to "turn a blind eye";
changes to organisational structure, by conducting a risk assessment and creating a culture in which workers feel empowered and contribute to the running of the business.
Employers get it wrong
The following are a number of recent cases reported by HR Daily's associate publication, OHS Alert, in which employers exposed themselves to litigation or liability for compensation due to an absence of mental-health-friendly policies or prudence:
The Australian Industrial Relations Commission found that an Australian Hearing Services worker suffered depression as a result of her supervisor's lack of compassion and "disproportionate" disciplinary action, effectively forcing her to resign.
The resignation amounted to an unlawful termination of employment, Commissioner Colin Thatcher found.
The employer, Commissioner Thatcher found, had made decisions about the worker's career path without keeping her adequately informed; had transferred her to a "lesser" position to "rehabilitate" her after illness; and had hindered the mediation process between the worker and a colleague - who she was "having difficulties" with - by requiring her to first seek treatment from a psychologist at her own expense.
The Administrative Appeals Tribunal (AAT) found that an Australian Taxation Office worker developed a depressive disorder after her concerns about the future of her rehabilitation program (for a prior neck injury) were ignored, and "implications" were made - without elaboration - regarding her competency.
In allowing the worker compensation, Tribunal Deputy President Philip Hack found that the worker had been transferred from a shopfront position in which felt she was "efficient and effective" to a role involving "inconsequential tasks".
In transferring the worker, Deputy President Hack heard, her supervisors had "implied" that her work in the shopfront had been unsatisfactory, but refused to expand on the basis of their accusation.
Their behaviour, he found, amounted to "harassment and bullying", and resulted in the worker experiencing headaches and anxiety.
In the NSW Workers Compensation Commission, Acting Deputy President Deborah Moore dismissed an employer's appeal and allowed a worker compensation after she found the worker developed "profound depression" due to an absence of "clear reporting lines or responsibilities".
Deputy President Moore heard that the Sydney South West Area Health Service ward assistant had been assigned new tasks after returning from a holiday. The extent of his new duties wasn't clarified and he was uncertain who to report to. His workload increased and he was the subject of several complaints regarding his subsequent performance.
As a result, the worker began to experience stress, which led to his depression.
Getting it right
In another case, an employer was protected from liability by the policies it had in place.
The Industrial Court of Queensland rejected a worker's stress-related compensation claim after it found the employer's implementation of performance indicators was "reasonable management action taken in a reasonable way".
The Sanofi Aventis sales representative contended that he suffered a psychological disorder from "excessive stress" after KPIs were introduced and his pressure to perform and workload increased.
However, President David Hall found that:
the employee's workload increased by an insignificant margin after KPIs were implemented;
coaching and mentoring had been made available to all sales representatives after KPI implementation;
regular meetings were held in which employees could express their concerns; and
"strategic advice" directed at employees who failed to meet KPIs was "mild" and could not be considered an "action taken against a worker".
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