Industrial relations challenges in managing mental health in remote locations Jonathon Hadley (Partner)

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Outline

Can an employer direct an employee to undergo a medical assessment?

What is the employer’s role and responsibility for the rehabilitation and return to work of mentally ill employees?

Can an employee experiencing mental health concerns be performance managed?

Strategies for reducing the risk of claims for discrimination, general protections and unfair dismissal by mentally ill employees.

Strategies for reducing mental health issues in FIFO/DIDO employees, or other employees working in remote locations.

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Statistics

In a study conducted by Lifeline WA in 2013, the findings indicated that: FIFO workers had higher levels of psychological distress than

the general population;

FIFO workers were generally reluctant to access assistance through Employee Assistance Programs, despite being aware of their existence;

Stress levels for FIFO workers were somewhat proportional to the time spent on-site and away from home.

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Stressors in FIFO/DIDO work

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Fatigue Control

exercised over workers

Financial Stressors

Drug Testing Out of Hours Facilities

Remoteness, Isolation & Loneliness

Workplace Culture

Bullying & Harassment Rosters

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REHABILITATION & RETURN-TO-WORK

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Rehabilitation

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WORKERS’ COMPENSATION AND REHABILITATION ACT 2003

Employers must take all reasonable steps to assist or provide rehabilitation to a worker whilst they are receiving compensation benefits (s 228).

Employers in “high risk” industries, and other employers, whose annual wages exceed prescribed thresholds, must (ss 226, 227): appoint a Rehabilitation and Return to Work Coordinator; and

have a workplace rehabilitation policy and procedures.

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PERFORMANCE MANAGEMENT

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Performance Management

Employers are entitled to apply a standard performance management process to all workers where there are legitimate performance concerns.

However, employers should take into account factors including: particular personal circumstances;

mental illness;

seriousness of performance concerns;

whether a performance issue relates to a key part of the job, or if the job could be adjusted to address the issue.

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Discussing a performance management concern

Advise the employee that:

1. There is a concern about their performance / conduct.

2. You are aware of, or suspect, that the employee may be suffering from a mental health concern.

3. You wish to discuss how they see the mental health concern impacting on their work performance.

4. The employer is willing to explore reasonable adjustments to the employee’s work.

5. If performance / conduct concern is not resolved, may need to revisit the issue.

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MEDICAL ASSESSMENTS

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Medical Examination & Evidence

An employer may direct an employee to undergo a medical assessment, provided that: the direction is reasonable;

the assessment is performed by an independent medical practitioner, and is paid for by the employer; and

there is a ‘genuine need’ that is relevant to the inherent requirements of the job.

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Case Study

Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 Employee sought to return to work after a long period

off work following shoulder surgery and provided medical certificates to the employer from his doctor and surgeon.

Employer directed the employee to see an independent medical practitioner, relying on its statutory WHS responsibilities.

The employee refused several times, and ultimately was dismissed.

HELD: Direction to attend medical practitioner was reasonable in circumstances. © DibbsBarker

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Medical Assessment & Evidence

Brief doctors carefully – and choose type of doctor carefully Set out employee’s history, performance management,

absences, other conduct, duties.

Ask whether employee is fit for work:

If not fit, when will the employee be fit for work?

If cannot determine when employee will be fit for work, when should the employee’s condition be reviewed?

Is the employee fit to participate in performance review/management process?

Are there any alternate suitable duties that may be appropriate?

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Employee Records & Privacy

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S 7B(3) PRIVACY ACT

Privacy Act exemption: Any act done, or practice engaged in, by an employer that is directly related to an employee record held by the employer.

‘Employee record’ is a record of personal information relating to the employment of the employee.

Employee records include information about: the employee’s health;

the terms and conditions of employment; and

the employee’s personal and other leave entitlements.

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Use of Information

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S 572A WORKERS ‘COMPENSATION AND REHABILITATION ACT

An employer must not use a workers’ compensation document about an employee for employment purposes. Includes any process for selecting a person for employment,

or for deciding whether the employment is to continue.

Exception – Workers’ compensation document that relates to the employee’s capacity to work can be used if necessary to secure the employee’s rehabilitation, or early return to work.

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DISCRIMINATION

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Discrimination

A person must not directly or indirectly discriminate against another person on the basis of a disability or impairment: Disability Discrimination Act 1992 (Cth); and

Anti-Discrimination Act 1991 (Qld).

Defences: Inherent requirements / genuine occupational requirements;

Unjustifiable hardship; and

Protection of health and safety at a workplace (Qld Act only).

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TERMINATION OF EMPLOYMENT

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Termination Risks

Legal Risks

Temporary absence for illness / injury

s 352 Fair Work Act

Dismissal within 12 months of

compensable injury s 232B WCR Act

Unfair Dismissal Part 3-2 Fair Work

Act

General Protections Part 3-1 Fair Work

Act

Disability Discrimination

Cth & Qld legislation

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Dismissal within 12 months of compensable injury/illness

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S 232B WORKERS’ COMPENSATION AND REHABILITATION ACT

An employer must not dismiss a worker within 12 months after the worker sustains an injury for which workers’ compensation is payable solely or mainly because the worker is not fit for employment in a position because of the injury.

Penalty: $4,554 per offence for an individual or unincorporated

business; or

$22,770 per offence for a corporation.

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Temporary Absence – Illness / Injury

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S 352 FAIR WORK ACT

An employer must not dismiss an employee because the employee is temporarily absent from work because of a prescribed illness or injury.

A prescribed illness or injury includes: Unpaid leave, where employee has provided a medical

certificate or statutory declaration within a reasonable time;

Paid personal/carer’s leave, where the employee has complied with the relevant evidence requirements in s 107(3)(a) FW Act; and

An absence of less than three months.

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Unfair Dismissal

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PART 3-2 FAIR WORK ACT

An employee has been unfairly dismissed if: the employee has been dismissed (or was forced to resign); and

the dismissal was harsh, unjust or unreasonable; and

the dismissal was not consistent with the Small Business Fair Dismissal Code; and

the dismissal was not a case of genuine redundancy.

An employee’s mental health should be taken into account when considering dismissing the employee. Mental illness diagnosed or discovered after dismissal, may

impact on whether the dismissal is fair.

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Case Study

Applicant v Respondent [2013] FWC 7421 The employer requested that the employee undergo an

independent psychiatric assessment after sending ‘disturbing’ and ‘weird’ emails to other employees.

The psychiatric report concluded the employee was suffering from untreated paranoid schizophrenia, and had no current capacity to work.

The report recommended that the employee provide a certificate from a psychiatrist when fit to work.

Two days later, the employee was dismissed.

HELD: No valid reason for dismissal.

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PART 3-1 FAIR WORK ACT

General Protections

An employer must not take adverse action against an employee because the employee has a workplace right.

A workplace right means: the entitlement to the benefit of a workplace law;

the ability to initiate, or participate in, a process or proceedings under a workplace law; or

the ability to make a complaint/inquiry in relation to employment.

Workplace law includes legislation such as Work Health and Safety Act and Workers’ Compensation and Rehabilitation Act.

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General Protections

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S 342 FAIR WORK ACT

Adverse action includes: Dismissing an

employee Injuring an

employee in their employment

Altering an employee’s

position to their prejudice

Discriminating between an

employee and other employees

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General Protections - Discrimination

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S 351FAIR WORK ACT

An employer must not take adverse action against an employee because of the person’s physical or mental disability.

Does not apply if action taken: would not be unlawful under other anti-discrimination laws,

such as the Disability Discrimination Act or the Anti-Discrimination Act (Qld); or

was taken because of the inherent requirements of the position.

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Case Study

State of Victoria (Office of Public Prosecution) v Grant [2014] FCCA 17 By early 2012, the employee was suffering from depression, which

had been disclosed to the employer.

There were a number of allegations of misconduct, including disclosure of confidential information and failing to follow employer directions. It was alleged that these were linked to the employee’s illness.

Ultimately, the employee was stood down, pending investigation, and was subsequently dismissed.

AT 1st INSTANCE –Employee’s performance and conduct were interwoven with his medical condition, termination breached s351 protection.

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Case Study Cont.

Appeal - [2014] FCAFC 184 On appeal, it was held that although the employer

knew of the employee’s illness, the medical evidence did not expressly or impliedly connect the misconduct with the illness.

Even though there is a close relationship between the adverse action and the mental illness, that does not mean that the two cannot be separated.

This Appeal decision demonstrates that it is possible to take disciplinary action against an employee even where an employee’s mental health may be impacting on their performance.

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Recommendations

1. Provide training that prepares workers for the hazards of FIFO work.

2. Invest in EAPs, encourage workers to use them – cultural change may be required.

3. If requesting a medical assessment, make sure the request is reasonable and directed towards the inherent requirements of the job.

4. Have regard to an employee’s disclosed or suspected mental illness when implementing disciplinary action or terminating employment.

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Pre‐employment and ongoing

medical assessments

Employee Assistance Programs

Employee training programs

Fatigue management training and programs

Peer support programs

Mental health evacuation plans

Activity programs in accommodation

facilities

Partnering with community programs

eg. R U OK Day. © DibbsBarker

Prevention Strategies

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Employee & Industrial Relations

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Jonathon Hadley, Partner Level 23 66 Eagle Street

BRISBANE QLD 4000

D +61 7 3100 5164 M 0411 465 515

jonathon.hadley@dibbsbarker.com

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