Workers' Mental Health (Qld)

Many workers experience mental health issues at some point in their careers. The inherent nature of some work causes or exacerbates stress and anxiety. Workplace bullying and harassment can also affect an employee’s mental health. Employers have a legal responsibility to promote a safe workplace that protects workers’ physical and psychological health. They also cannot discriminate against a worker because of their mental health. This article explains an employer’s obligation to protect workers’ mental health in Queensland.

Workplace Health and Safety Queensland (Worksafe) defines a mentally healthy workplace as one that:

• Identifies workplace psychological health and safety hazards and works to minimise or eliminate these risks;
• Helps workers be resilient through the acquisition of skills, knowledge and capabilities;
• Promotes positive mental health workplace practices;
• Eliminates stigma and discrimination; and
• Supports workers re-entering the workplace after psychological or physical injury.

Creating a mentally healthy workplace benefits both employees and employers. Studies show that a healthy workplace promotes increased workplace productivity, job satisfaction and engagement. These factors allow for higher worker retention and the ability to attract top talent, saving employers the costs of recruitment and training due to high staff turnover. Healthy workplaces also have lower worker absenteeism, work-related illness and injuries, and workers’ compensation claims. The bottom line is that workers thrive in a mentally healthy workplace.

Mental Health Accommodations

Australian employers have a health and safety obligation to reduce mental health risks in the workplace. The Work Health and Safety Act 2011 (Cth) requires business operators to do everything reasonably practicable to eliminate or minimise risk to workers’ physical and psychological health. For instance, employers must reduce workplace bullying and manage work expectations that are likely to encourage employee stress and fatigue.

Worksafe publishes a Code of Practice for employers on health and safety risks. This code establishes a standard for the systematic management of psychosocial risk in the workplace. Queensland employers should follow this code and other Worksafe hazard guidance material on bullying, work-related stress, violence and fatigue.

When an employer is aware of an employee’s mental health condition, they need to make accommodations to help the worker function. Employers should implement effective communication strategies, make reasonable duty adjustments, and address performance concerns. The employer should also consider further action if they are concerned for the worker’s health and safety.

Notably, an employee with a diagnosed mental health condition can ask their employer for flexible work arrangements to help them meet performance requirements. An employer must make reasonable adjustments to assist employees with diagnosed mental health conditions. An employer can only ask workers for information about their mental health in certain circumstances.

Employer Discrimination

Anti-discrimination legislation prohibits employers from discriminating against an employee because of mental illness. Under the Disability Discrimination Act 1992 (Cth), an employer cannot treat an employee differently because of their mental illness. Also, the Fair Work Act 2009 (Cth) and Industrial Relations Act 2016 (Qld) contain general protections for employees with mental health issues. These protections prohibit an employer from taking adverse action against these employees. For instance, employees can claim unfair dismissal if they are terminated because of mental illness. However, an employer can still take disciplinary or performance action against a mentally ill employee.

Case Study

In Monash University v Michael Meaney [2019], the Fair Work Commission (FWC) found that mental illness was not a shield against adverse action. The FWC established that an employee’s mental illness did not prevent an employer from taking disciplinary action for employee misconduct. Mr Meaney, an employee of Monash University, was summarily dismissed in 2017. The university took this adverse action after multiple incidents of Mr Meaney speaking and behaving aggressively to colleagues and driving recklessly on campus. Mr Meaney subsequently filed an unfair dismissal application with the FWC.

Prior to his dismissal, Mr Meaney had informally advised his employer that he suffered from mental health issues. A doctor’s certificate he obtained after his termination stated that he had an adjustment disorder and anxiety. The FWC initially found that while there were valid grounds for dismissal, Monash had acted unreasonably given Mr Meaney’s mental health. Because he informed his employer of these issues, the university should have used other disciplinary methods. The university won on appeal to the Full Bench of the FWC. The Full Bench found that while the employer was aware of Mr Meaney’s mental health condition, there was no causal link between his condition and misconduct. Further, Mr Meaney’s abusive and aggressive conduct was serious enough to warrant disciplinary action.

Employers who want to dismiss an employee must demonstrate that there is no correlation between the employee’s mental health issues and the reason for termination. Alternatively, the mental health issues must not outweigh the seriousness of the misconduct as a reason for dismissal.

The team at Armstrong Legal can help with advice on employee rights or employer’s obligations to create a mentally healthy workplace. Please contact our helpful and experienced solicitors on 1300 038 223.