industrial relations challenges in managing mental … · industrial relations challenges in...
TRANSCRIPT
Industrial relations challenges in managing mental health in remote locations Jonathon Hadley (Partner)
2
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.
© DibbsBarker
3
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.
© DibbsBarker
4
Stressors in FIFO/DIDO work
© DibbsBarker
Fatigue Control
exercised over workers
Financial Stressors
Drug Testing Out of Hours Facilities
Remoteness, Isolation & Loneliness
Workplace Culture
Bullying & Harassment Rosters
© DibbsBarker
REHABILITATION & RETURN-TO-WORK
6
Rehabilitation
© DibbsBarker
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.
© DibbsBarker
PERFORMANCE MANAGEMENT
8
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.
© DibbsBarker
9
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.
© DibbsBarker
MEDICAL ASSESSMENTS
© DibbsBarker
11
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.
© DibbsBarker
12
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
13
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?
© DibbsBarker
14
Employee Records & Privacy
© DibbsBarker
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.
15
Use of Information
© DibbsBarker
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.
© DibbsBarker
DISCRIMINATION
17
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).
© DibbsBarker
TERMINATION OF EMPLOYMENT
19
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
© DibbsBarker
20
Dismissal within 12 months of compensable injury/illness
© DibbsBarker
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.
21
Temporary Absence – Illness / Injury
© DibbsBarker
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.
22
Unfair Dismissal
© DibbsBarker
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.
23
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.
© DibbsBarker
24 © DibbsBarker
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.
25
General Protections
© DibbsBarker
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
26
General Protections - Discrimination
© DibbsBarker
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.
27
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.
© DibbsBarker
28
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.
© DibbsBarker
29
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.
© DibbsBarker
30
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
31
Employee & Industrial Relations
© DibbsBarker
Jonathon Hadley, Partner Level 23 66 Eagle Street
BRISBANE QLD 4000
D +61 7 3100 5164 M 0411 465 515
32 © DibbsBarker