The importance of a modern approach to managing mental illness in the workplace

Mental illness is no longer a novel or taboo issue in the workplace context. Statistically and anecdotally, there is a much greater community awareness of conditions such as depression and anxiety. Unfortunately, evidence suggests that this often does not translate into robust response action from employers.

A recent survey shows, that most organisations do not have specific policies and procedures for monitoring and addressing problems with the mental health of their staff. Developing trends in judicial thinking do not sit comfortably with this absence of forethought or proactivity.

In Wearne v State of Victoria [2017] VSC 25 a state government employee was awarded $600,000 in compensation for the negligent management action (and inaction) of her employer, which contributed to a breakdown causing her to become totally incapacitated for work. The key point in this case is that the employer knew of the employee’s pre-existing mental issues. Justice John Dixon said:

“…the Department understood that the plaintiff… suffered stress and anxiety about the new demands being placed on her as an employee. This understanding imposed particular demands on the Department in providing the plaintiff with a workplace that was not injurious to her health and wellbeing.

If you become aware, or should be aware in the circumstances (you can’t bury your head in the sand), that an employee is affected by significant mental health pressures, you are obliged to consider that factor in discharging your duty to take reasonable care. You should also be aware that an employer’s duty extends to being attentive enough to monitor employees (within reason) and remove them from, or not place them into, situations which have a foreseeable likelihood of jeopardising or aggravating their mental health. The absence of a formal complaint or grievance is not a reliable defence in this context.

Sometimes an employee’s mental health is poor enough that they are unable to perform the inherent requirements of their position and this remains a valid reason for termination of employment. However, it is important not to get ‘tunnel vision’ in these situations and forget about the big picture.

In Duarte v The Paraplegic & Quadriplegic Association of NSW [2017] FWC 175 an employee was terminated for her inability to perform her job, due to a major depressive disorder. The employer had considered and discounted the possibility of reasonable adjustments to accommodate the employee’s illness and medical evidence suggested that she would be out of action for a prohibitively long period.

After her condition deteriorated, the employee made complaints of bullying to the chief executive of the organisation and similar complaints were recorded in a psychologist’s report provided to HR. Deputy President Anna Booth criticised the executive’s decision not to forward the employee’s concerns on to HR as well as the lack of any proper investigation by HR based on the report.

The employee’s dismissal was upheld and the Deputy President observed that there was insufficient evidence to support a finding of bullying. However, the outcome could easily have been different if the worker had pursued a bullying claim in the Fair Work Commission at an earlier stage. It is also important to consider the reputational damage done by extremely pointed comments such as those published by the Commission in this case.

We recommend that you approach workplace mental health issues thoroughly and thoughtfully, which may sometimes involve going beyond what might appear to be strictly necessary. Weber v Deakin University [2017] FWC 744 is an example of the way that careful adherence to a reasonable workplace policy can assist you to navigate a contentious or difficult situation gracefully and lawfully.

In that case a lecturer, who had formerly pursued a heated discrimination complaint against the university, argued that he had been forced to resign and thereby unfairly dismissed. His claim centred upon Deakin’s refusal to allow him to work from home to accommodate his psychiatric condition.

Commissioner Roe observed that before refusing the working arrangements proposed by the lecturer, the university had consulted with him, sought advice from an independent expert and proposed alternatives. They also based their refusal on legitimate business concerns and articulated those reasons clearly. This procedurally savvy approach went a long way to insulating the university’s subsequent decision, to put the employee on personal leave at half pay and then unpaid leave, from criticism or interference.

The combined message from these cases and others like them is that:

  • organisations should train their managers and supervisors to increase their mental health awareness as part of the general ‘WHS literacy’ necessary to manage people effectively;
  • organisations need to build the internal capability of their people to deal with mental illness more effectively and not become over reliant on external third parties;
  • workplace participants need to increase their capacity to effectively communicate to deal with minor conflict and resolve it before it increases to something much more substantial;
  • organisations should adopt written workplace policies which have in place obligations on parties to openly discuss and exchange medical or other relevant evidence to enable resolution;
  • organisations should not wait until a potential mental health issue has blown up – if you know a worker is vulnerable then do what you reasonably can to manage the situation; and
  • when an employee’s condition is such that they can no longer perform the basic requirements of their role (even with reasonable adjustments), you should adopt a consultative, empathetic and procedurally rigorous approach to ‘exiting’ the employee.

If you have any queries or would like further information, please contact:

Joe Mullavey
M: 0416 794 061

Published: 15 March 2017

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