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Friday Workplace Briefing

When Your Staff Member is Exhibiting Mental Health Issues – What Should You Do?

In this week’s Friday Workplace Briefing, Andrew Douglas and Mathew Reiman discuss what you should do when a staff member is exhibiting obvious mental health issues and the risks you and your business face when you don’t do the right thing.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: I think for Matt and I, one of the things that is most troubling, probably because of the place we live and work in that it’s not uncommon for people to come to work demonstrating clear mental health issues. I mean, one in four, in the legal industry, it’s about one in three actually. About one in four people suffering mental illness that impairs their capacity to undertake the inherent requirements of the job that they’re doing. So we’re likely, just by statistics, to see or observe somebody who’s struggling. We’ll see it at different levels. We’ve talked many times about the monitoring obligations under section 22 of Safety Legislation in Victoria, and the comparable piece of legislation throughout Australia requires you to understand what it looks like in a person, And that’s a relationship issue. As a leader, it’s connecting and understand what’s happening in people’s lives.

Mathew Reiman: Most definitely.

Andrew Douglas: And it’s being present for that person so you can determine what good looks like. So when good’s not there, you see the sliders.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: And the case law unquestionably, when we look at Burke v Suncorp and those cases say, “When a reasonable person could observe there’s a movement away from good and it’s impacting someone’s capacity to do the inherent requirements, there is an obligation to intervene.”

Mathew Reiman: Yeah, that’s right.

Andrew Douglas: So I just want to set that light because we saw this terrible coroner’s finding of the Tasmanian ambulance where a person was displaying some bizarre behaviour, which should have put anyone on notice, that person was at risk and he posed a risk to other people. The guy ultimately died, and the coroner was just excoriated by the ambulance service for their failure to intervene on this established and recognised case law that says, “Both in safety law and under workplace law, you must intervene.” Now, we’ve been lucky, I think, as a jurisdiction and now it’s throughout Australia with Kozarov where the issues of particular risk have been concentrated on by court and says, and Matt works in this environment, so I just want to use a law firm to give you an example.

Mathew Reiman: Yeah, I think it’s a great example.

Andrew Douglas: Law is a high-risk environment. Why is law a high-risk environment? It’s not something you can switch off from. So when Matt turns his phone off at night, he can’t switch his brain off.

Mathew Reiman: No, that’s true.

Andrew Douglas: That’s because Matt’s a bit weird.

Mathew Reiman: No.

Andrew Douglas: It means he’ll have three or four matters of real urgency that are ticking away in his brain but he understands he’s got to be there for Tex and Grace. He’s got to be present at home and he has to switch off. So when he turns the phone off, he doesn’t turn his brain off. Some of those are issues which are challenging people’s lives and livelihoods. So in our environment, I know we are in a high-risk environment.

Mathew Reiman: That’s right, from the environment.

Andrew Douglas: Yeah, that’s right. So in our environment, Kozarov, which is the high court case says, “If you know someone is exposed to a high-risk environment, then your obligation is at common law is like a positive duty.” Now we know under psychological hazards there is a positive duty. We know in relation to sex discrimination and harassment, and hostile working, there is positive duty. That is a duty to understand the risks that is assessed and to collect evidence to ensure that when Matt does turn off the phone, he enjoys the confidence of the business that it’s safe to switch off his brain.

Mathew Reiman: Yes, that’s right.

Andrew Douglas: Does that make sense? But if I saw, if Matt came in and said, we were chatting yesterday with Tex, Tex is not so flash, he needs to get home. So this case law is all around not observing someone with a mental health issue, it’s about preventing someone from having a mental health issue.

Mathew Reiman: That’s right, and I think one of the things we get raised with this by clients quite a lot these days is there’s this trepidation around understanding or seeking to get a better understanding of their individual employees’ personal circumstances. I mean, obviously people don’t want to be seen to be prying, they don’t want to be seen to be stepping into the personal and the private.

But unfortunately, that politeness, which I might call it, which people perhaps once would’ve said this is an acceptable way to go. One keeps these two things entirely separate, work and personal. It’s just not reflective of two things. One, a modern-working environment where using your example, Andrew, it’s not really that easy to switch off. Even a trader puts down the tools, doesn’t leave the stresses of the workplace where the tool is left.

And also that there is this increasing case law that says “You actually have to do more. You’ve got to take those positive steps. You need to get the information, you need to inquire.” So clients should feel comforted by the fact that the law supports an inquisitorial approach if there is a demonstration of risk.

Andrew Douglas: So look, can I put that in a very simple term for you? When someone walks through the door, the moment they walk through the door, they’re yours. So we know that around about 70% of the stresses that lead to mental health are actually not work, they’re home. So when a person comes to you and you see changes, the way they behave, the fact that they’re from home, don’t change the fact that you’re now on risk in safety law and/or workplace law. So as Matt said, “You’ve got to have that relationship now.” It’s not prying, it is being candid about saying, “Okay, Matt, you’re looking a bit stressed. Is it something we can do to help?” And Matt tells me what’s going on. Okay, let’s do this. But privacy law, the moment it goes to the inherent requirements of the job lifts.

Mathew Reiman: That’s right, yeah.

Andrew Douglas: And therefore, building leadership skill around relationship and engaging is the only modern and respectable method of actually complying with the current law. So this idea of sort of territorial behaviour where there is a leader who keeps this —

Mathew Reiman: Distance, yeah.

Andrew Douglas: It’s just b*******.

Mathew Reiman: Yeah, that’s right.

Andrew Douglas: And it’s illegal and it’s dumb. Sorry, anyway, let’s go on… Seeing we’re going live, I’ve already done it. Okay, let’s go on to the case study. Do I read this or do you read it?

Mathew Reiman: Oh, I can read it.

Andrew Douglas: You can, yeah.

Mathew Reiman: Why not? All right.

Danielle looked tired. She’d been working rotating shift work for the last few years, had two young children and her husband was a FIFO worker. Her youngest boy suffered from a blood disorder. He was age six. There were times when she would have to leave work urgently and take him to a hospital. Her manager, Sven knew her life was tough, but she was a resilient and private soul.

Over the last three months her son had suffered three episodes requiring hospitalisation, all when her husband was away. She had several colds and the business had decided to change shift structures to permanent shifts. Something which would drain to breaking point her family resources to care for the children. The new shift structure was implemented in accordance with the EA requiring 14-days’ notice.

On day 13 of the notice period, Danielle is seen crying in the crib room. No one has spoken to her about the new shifts, and she just found out she was going on permanent nights in three days’ time. She had no way of arranging childcare. Everyone had seen her deteriorate since the announcement. Her hair was unwashed, her expression was stressed and sad and her work had dropped off. Several had approached Sven and raised it with him. He had said he feels sorry for her but “She needs to suck it up.”

As she was leaving her mental state rendered her distracted, she walked out in front of a forklift in the outward-bound dispatch area.

Andrew Douglas: All right so, a sad tale.

Mathew Reiman: A sad tale.

Andrew Douglas: A sad tale. But the first question was, had Sven and her employer committed any breach of safety rule, and if so, what was it?

Mathew Reiman: Absolutely.

Andrew Douglas: Absolutely.

Mathew Reiman: It’s a breach of the primary duty, right?

Andrew Douglas: Yeah, so where you’ve got the breach of the safe workplace and the monitor. And you’ve got a breach of the safety system. So you’re in huge trouble. And unquestionably the organisation would be prosecuted.

Mathew Reiman: Yes.

Andrew Douglas: Can I just say on a fatigue level they would be at risk?

Mathew Reiman: Yeah, oh, my goodness.

Andrew Douglas: If nothing else. Forget the mental health issue, you’ve got a woman who’s demonstrating obvious fatigue. You’ve got a woman who’s got distress and there has been no intervention at all.

Mathew Reiman: No, that’s right well, in fact it’s the complete opposite. They’re trying to wash their hands off it entirely telling her to “Suck it up.”

Andrew Douglas: Yeah, okay, now we get into the funny stuff. If Sven disciplined her for poor performance, would she have a good general protection?

Mathew Reiman: Oh, my goodness, yes, absolutely. I mean, he would have to give evidence as the decision maker and to try and say that her performance issues can be completely divorced from the clear health issues were just not be able to be sustained.

Andrew Douglas: Well, in some ways because it completely breached the obligations of consultation, both under safety law and under awards.

Mathew Reiman: Oh, my goodness.

Andrew Douglas: There’s nowhere Sven can go.

Mathew Reiman: No, no, no, he’s got nowhere to go.

Andrew Douglas: So interesting in this case, both the organisations and Sven would be named in a general protection suit. And we’ll talk more about discrimination later. What I want people to understand is in the first two questions here, Sven is going to be charged or part of any procedure.

Mathew Reiman: Yeah, absolutely, you name him as knowingly involve.

Andrew Douglas: So coming back to what Matt and I said about engagement relationships, Sven didn’t do it. Let’s go to the next question. Okay, Matt, shoot, was Danielle discriminated against?

Mathew Reiman: Yes, yes.

Andrew Douglas: He’s excited about this —

Mathew Reiman: Yeah, indeed, ’cause we don’t often get to talk about indirect discrimination, but I mean there’s obviously there’s clear-direct discrimination as well, which is that they know of her family and caring responsibilities and they’ve completely taken adverse action effectively against her because of that.

But it’s interesting I think there’s also an argument that this change of the shift structure is a form of indirect discrimination. So it’s the imposition of a requirement, which affects a group of people with a particular attribute to their detriment. And it clearly does here, this imposition of the permanent shift says negatively affected not only Danielle, but obviously, any other parent or person with parent and caregiving responsibilities.

Andrew Douglas: This is such a big warning, can I just say. Because this clause does exist in a lot of enterprise, it doesn’t change the common law and discrimination law obligation of consultation and making reasonable adjustments.

Mathew Reiman: That’s right. Which flows quite nicely to the next.

Andrew Douglas: Which is requirement to individually assess a person circumstances rather than to use a broad brush.

Mathew Reiman: That’s right, that’s right. And what we know from the facts scenario is that they didn’t bother to speak to her directly at all. So, it’s not even that you could say that there is some general consultation that she elected not to participate in or anything like that.

Andrew Douglas: So jump into four, Matt. Jump into four.

Mathew Reiman: Jump into four. So yeah, it did breach industrial and safety law obligations of consultation. So it’s failing to consult properly the individual employees involved.

Consultation is not just simply some sort of label that you stick on top of some sort of surface level engagement with people. You do have to take into account those individual circumstances, the entitlements of an individual employee to be able to enforce against the employer. So you must have evidence to show that those individuals and the individual circumstances were properly considered.

Andrew Douglas: And look, can I just say why safety law is such an interesting fact here. When we talk about consultation and safety law, we normally look about the commissioning of a new machine or a new line in the factory, but just remember psychological hazards. So you put that up there and you say, look, we’re doing something, which by its very nature creates a psychological hazard. Therefore, if it creates one which changed the manner in which work is going to be done, there must be individual risk assessments undertaken as part of safety.

So psychological safety has broadened the amber of the consultation obligations unquestionably within safety law. So you have to do that at the stage of the risk assessment, then as you go to implement it and the decision has been made, so there’s two different times, you then go into the consultation required under the law. So there are two periods of consultation, not one collapsed in into, how’s you feeling about that? And that bad luck, off you go.

Mathew Reiman: Yeah, that’s right, that’s probably misunderstood.

Andrew Douglas: Okay, if Danielle died, industrial manslaughter.

Mathew Reiman: Yes, so there’s the breach of the primary duty. It was reckless and, I always forget the second part, sorry.

Andrew Douglas: So is there a primary duty breach? Yes, there is a primary duty breach.

Mathew Reiman: Which we established earlier.

Andrew Douglas: It not only relates to the officer in the organisation, so the next question is, was the nature of the breach of such a high level that it reaches a criminal negligence?

Mathew Reiman: That’s right.

Andrew Douglas: Criminal negligence. Okay, well, we’ll have a look at this. There was a knowledge that was held by a supervisor and by all people present. And there wasn’t a system that would’ve prevent it. So you’re on the cusp, but I think Matt was looking more at reckless.

Mathew Reiman: Yeah, sorry, I think —

Andrew Douglas: No, no, no, no. But I think that’s right. I think the charge would actually be, was there a knowledge, which would’ve had Sven liable and would have the organisation liable? Did Sven hold the knowledge of serious risk and serious injury? Yes.

Mathew Reiman: Yep.

Andrew Douglas: Was was he indifferent to it? Yes.

Mathew Reiman: Yes.

Andrew Douglas: Reckless endangerment, five years in jail.

Mathew Reiman: Yep.

Mathew Reiman: 3 million dollar fines. But no, it doesn’t make it to industrial manslaughter.

Mathew Reiman: Okay, here we go.

Andrew Douglas: Because it doesn’t –Mathew Reiman: Because we don’t have the evidence besides of failure of a system to actually hold an officer and therefore we don’t get the criminal negligence.

Mathew Reiman: That higher level.

Andrew Douglas: And the second thing is does the person die, and doesn’t matter where they die?

Mathew Reiman: Yes.

Andrew Douglas: No, it doesn’t.

Mathew Reiman: Oh, actually we didn’t know that she died. Which they said she died. That’s right.

Andrew Douglas: So there you go.

Mathew Reiman: There we go.

Andrew Douglas: There we go. But look, fascinating today, thanks Matt. Lovely to be back and catch up with you.

Mathew Reiman: Wonderful, absolutely.

Andrew Douglas: And lovely to be live.

Mathew Reiman: Yeah, live, so to speak.

Andrew Douglas: So see you next week. Thumbs up, please.

Mathew Reiman: Thanks so much.

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