Lawyer Melissa Demarco and Partner Shae McCartney write about managing mental illness, and asking the difficult questions.
On September 10, Australians acknowledged the impact of mental illness on RUOK? Day. RUOK? Day is a national day of recognition held annually on the second Thursday in September, dedicated to remind us all of the importance to stop and ask, are you okay?
Founded in 2009 by the late Gavin Larkin, the campaign started with just one question, a question which goes deep and relates to a topic that is often difficult to discuss but, in some way, affects us all. It is one question to starts a meaningful conversation – a conversation that may have a significant impact on a person’s life.
The statistics of those who are suffering or have suffered from mental illness are alarming. It is estimated that one in five Australian adults will be affected by mental illness in some form each year. Almost half will experience mental illness at some stage in their life. To put these figures into perspective – in a workplace employing 500 individuals, 100 of those employees could be suffering from a mental health condition and, at some stage, 250 of those employees will suffer from a mental health condition.
From an employer’s point of view, it is critical to understand what impact (if any) an employee’s illness or injury will have on the individual’s health and safety, as well as the health and safety of others, at the workplace.
In circumstances of a mental illness or injury, the ability for an employer to comply with its legislative requirements is somewhat restricted given that mental illness is less obvious than other medical injuries or illnesses and very subjective. It is often difficult to recognise whether someone is suffering from a condition to be able to understand and provide support. This is complicated by the social stigma associated with mental illness.
Consequently, those who suffer from a mental health condition, do so in silence for fear of reprisal.
DUTY OF CARE
A person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
The primary duty of care contained in the various health and safety legislation, irrespective of the jurisdictional variations, is concerned with the need to ensure that the duty covers all kinds of working relationships, addressing the wide range of known and emerging hazards and risks arising from the conduct of work, operating in relation to all aspects of health, including psychological health, and the need to eliminate or minimise risks to physical or psychological health so far as is reasonably practicable.
Significantly, in relation to coal mines and coal mining operations, the primary duty of care extends beyond the workplace or coal mine to coal mine operations. Coal mine operations are defined as mining activities carried out for the purpose of extracting minerals from the ground, injecting minerals into the ground or exploring for minerals by mechanical means that disturb the ground. and activities carried out in connection with mining activities at a site, or at a site adjoining or in the vicinity of a site, at which the mining activities are carried out.
Coal mine operators will therefore need to satisfy themselves that risks to physical and/ or psychological health at a mine, or any activities or proposed activities at the mine that could create a risk to the health and safety of persons, are managed so far as reasonably practicable. Although the ability to identify hazards and risks beyond the mine may be onerous, there are a number of measures that could be taken.
SUPPORTING PSYCHOLOGICAL HEALTH
The challenging task of supporting and managing health and safety is one that requires extensive professional advice, are and skill at all levels.
At the basic level, the management of psychological health can take form of identifying warning signs or changes in behaviours and simply asking your friend or colleague – “are you OK?”
From a corporate governance perspective, measures that could be taken to manage risks to psychological health include:
- providing adequate facilities and resources to workers, and access to those facilities
- providing information, training, instruction or supervision
- monitoring the health of workers
These examples are not exhaustive and a one size fits all approach should not be taken when addressing health and safety issues.
INJURY MANAGEMENT
Costs associated with psychological illness and injuries to employers are significant. Mental illness is the leading cause of absences and long term work incapacity and costs Australian businesses over $12 billion per year in lost productivity.
Generally, when an employee has been absent from the workplace for an extended period of time, there is a greater need to understand the employee’s medical condition. In that regard, it may be necessary to obtain further medical information to clarify or understand any limitations that the illness or injury may place on the employee to safely return to work and if so, in what capacity.
Obtaining personal information from employees may be difficult as employees are often reluctant or unwilling to provide this information. Grant v BHP Coal Pty Ltd is an example of this.
In that particular case, Mr Grant was absent from work for over eight months for a shoulder injury and was directed to attend a medical appointment organised by his employer, BHP Coal. Mr Grant failed to attend the appointment and as a result, he was disciplined and his employment was subsequently terminated.
The Full Bench of the Fair Work Commission held that it is reasonable for an employer to direct a worker to attend a medical appointment for a functional capacity assessment before being assigned duties.
INHERENT REQUIREMENTS
Since the Grant v BHP decision, there has been a steady increase in employers introducing policies and procedures and/ or including clauses in industrial instruments to make it a contractual requirement or an employee to produce further evidence and/ or submit to medical examinations where further clarification of a medical condition is required. However, it is not necessary to have an express contractual provision.
Where an employer has reasonable concerns about the employee’s fitness or capacity for work, they can rely on the implied contractual right reinforced by the legislative obligations and seek further information, or direct the employee to attend a medical examination. In order for this implied contractual right to arise, the information requested must be for legitimate operational or business purposes and to enable the employer to comply with its obligations under work health and safety legislation.
In that regard, the employer’s obligation to ensure the health and safety of its employees will provide a reasonable basis for making such a request. Concerns about the employee’s fitness or capacity for work could arise in circumstances where:
- the employee has provided limited information regarding the illness or injury
- the employee works in a high risk occupation
- the employee is absent for an extended period
- the employee’s injury, illness and/ or the treatment received (including medication) may affect the employee’s ability to safely perform his or her duties
It is very common for employees to provide a medical certificate from a GP which says, “in my opinion, the worker is not fit for duty and is suffering from a medical condition”. In certain circumstances, an employer does not have to accept a medical certificate provided by an employee regarding their fitness for work on face value.
There must, however, be a genuine reason in directing an employee to attend a medical examination or requesting that further information be provided. For example, in the case of Australian and International Pilots Association v Qantas Airways Ltd, Mr Kiernan (a Qantas pilot) provided a medical certificate from his doctor advising he was “suffering from clinical depression and would be unfit for normal work for the next four months”.
A further medical certificate was subsequently provided stating that Mr Kiernan would be “unfit for normal work for a further three months”.
In light of Mr Kiernan’s ongoing absence and the lack of detail given by the medical certificates, Qantas directed Mr Kiernan to provide a report from his doctor on his “diagnosis, prognosis, capacity to return to his pre-injury duties and the anticipated time frame”. Mr Kiernan disputed Qantas’ ability to issue the direction.
The court found that Qantas’ direction was reasonable and that it was unrealistic to expect that an employer should not have a right to obtain relevant information about an employee who had been on extended sick leave.
While it is unlawful to terminate an employee for a discriminatory reason such as, for example, being temporarily absent from work due to an illness or injury, if the reason relates to the employee’s ability to perform the inherent requirements of his or her position (based on specialist medical evidence), the decision to terminate would be for a lawful and valid reason. Again, care should always be taken when addressing these issues.
Employers cannot simply rely on self-disclosure obligations to understand psychological illnesses or injuries to manage risks health and safety of others and provide support and assistance – particularly for injuries that are less obvious,yet so common.
“Mental illness is the leading cause of absences and long term work incapacity and costs Australian businesses over $12 billion per year in lost productivity.”
PROFILE
MELISSA DEMARCO
Melissa Demarco is a Senior Lawyer at Clayton Utz. Melissa has extensive experience in advising large employers in highly unionised industries and has a record of delivering practical solutions in complex disputes. She has extensive experience advising employers on a variety of issues involving Work Health and Safety, discrimination and harassment, redundancy, performance management and workers’ compensation matters. In addition, she assists employers with issues arising from employment contracts, awards and industrial instruments and workplace policies.
Melissa can be contacted on email: mmd@cbp.com.au
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