ELM: Several employment lawyers we met throughout 2016 cited that there was an increase in the number of ill and injured cases they had to work on. In your opinion Beth, why do you think there continues to be a rise in cases in this space?
BETH: I agree that there has been an increase in these types of matters being referred to us. In my view, the increase is a result of the significant and continuing increase in the number of psychological injuries being reported in the workplace which are often complex and difficult to manage, particularly where communication has become difficult with an employee.
While there are no doubt a wide variety of issues contributing to this increase, contributing factors include the increasing general awareness of psychological health issues, increased workplace stressors arising from difficult economic conditions, rapid workplace change, increasing demands on employees and an increasing consciousness of ‘workplace bullying’.
ELM: Specially also, we were told there was an increase in workers compensation claims in employee mental health. What trends have you seen in the management of workplace mental health?
BETH: There has been a noticeable increase in the awareness of mental health issues and willingness to raise and discuss these issues. This is really important, particularly for managers who need to be equipped to identify when an employee may be struggling and be willing to ask that employee if they are OK.
While it remains a work in progress for most employers, with larger organisations there is increasing investment in training in the mental health space and an increasing recognition that safety practices need to address psychological as well as physical risks.
ELM: Your speaking session at HR Law Perth in March asks you to share learnings from recent cases involving the management of ill and injured workers. Are there two or three specific cases that immediately spring to mind you can briefly highlight to us now? And why these?
Beth: The first case that springs to mind is Collison v Brighton Road Enterprises. This was a general protections claim in the Federal Circuit Court where the employee, who was dismissed, succeeded in her claim that her dismissal was due to her taking sick leave. One of the reasons this case springs to mind because the employee took sick leave following essentially a performance discussion with her manager. This is a scenario that I often see in matters I give advice on. There were also some interesting comments regarding an employer’s right to direct an employee to provide consent for the employer to speak to their treating practitioner.
A second case is a discrimination case in Victoria called Butterworth v Independent Australia Services. This decision considered what are ‘the inherent requirements of a role’ and what questions an employer should be asking an independent specialist in determining fitness for work. These are really important principles for an employer to understand in managing ill and injured employees.
ELM: What advice do you have for employers going into 2017 unsure of how to manage employees with an illness or injury?
BETH: The management of ill and injured workers can be something of a legal minefield, so it is important that employers do understand what their obligations are to their employees before making any decisions which may negatively impact on an employee’s employment.
My main advice is:
- remember that the overriding duty of an employer to an employee is to ensure that the employee is safe in the workplace. If you know an employee is suffering from an injury or illness that affects their safety, you need to take steps to manage this (irrespective of whether the injury/illness is work related), both for the employee’s benefit as well as the benefit of other employees who may be impacted;
- as an employer you have a right to manage your business and make decisions to address operational needs. So don’t be afraid to make decisions, but ensure that any decisions you do make are consistent with legal obligations;
- engage early with the employee and ensure that there is open and consistent communication and be patient throughout the process;
- ensure that there is independent, clear and appropriate medical advice and follow that advice. Don’t be afraid to ask more questions of the medical specialists if you are unclear regarding a particular issue.
If you are finding a matter is particularly difficult to deal with, or you are not sure on how to proceed, don’t be afraid to seek advice.
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