Do you consider stress, anxiety and depression as potential factors behind misconduct and poor performance? Tread carefully.

One in five Australian workers report they have taken time of work due to feeling mentally unwell in the past 12 months. And around 45% of Australians aged 16 to 85 experience at least one mental health episode over the course of their lives.

It’s a story all Australian businesses could learn from, according to Joe Murphy, Managing Director – National Workplace at Australian Business Lawyers & Advisors (ABLA), who believes communication is the key to ensuring a happy outcome for everyone. 

“It may be a difficult topic to broach, but open communication between an employer and employee can usually prevent the uglier side of mental health litigation and compensation cases,” he says.

Identifying a problem – tread carefully
Think someone on your team might be in trouble? Take some time to consider that person’s state of mind before you open up a conversation, advises Murphy.

Legally, employees are protected from discrimination based on mental health conditions under the Disability Discrimination Act 1992 – but only if they can meet the “inherent requirements” of the job, according to Murphy. State and Territory workers compensation and anti-discrimination legislation can also provide certain obligations on employers, including an obligation to consider alternative employment options.

“If they’re incapacitated for a long period, unable to do their job, or if they present a danger to other workers, an employer may terminate their employment so long as reasonable adjustments by the employer have been properly considered, and they have enough medical evidence to come to the conclusion that the employee cannot perform the inherent requirements of the job.”

Murphy suggests starting “with a casual query about how they’re feeling, or if there’s been a situation at work. You can use that as the springboard to ask whether they’d be interested in the company’s employee assistance program”.

Avoid the risk of overreaching
It pays to tread carefully. Get it wrong and you run the risk of employees lodging a claim with Fairwork, the Human Rights Commission or their State or Territory Tribunal to seek compensation.

“Legal costs alone can be in the hundreds of thousands, but then you’re also looking at the actual compensation as well as the penalty you may be ordered to pay ($63,000 for businesses or $12,600 for individuals),” he says. “And what price do you put on your business’s reputation?”

Benefits of prevention
Limiting scenarios in the workplace that may cause mental ill-health has a number of benefits. By identifying appropriate risk management options and training staff with necessary tools to identify staff who may be suffering you’re putting the health of employee’s front of mind, resulting in fewer injuries and illnesses. This in turn results in increased productivity, reduced absenteeism and personal leave and reduced staff turnover.

If you’re an employer or HR manager seeking guidance on how to manage employees experiencing stress, anxiety or some form of mental health condition, register to attend our next round of Workplace Updates – The invisible challenge for employers.

Workplace Update Seminars will be held on the following dates featuring speakers from award-winning law firm Australian Business Lawyers & Advisors. Register for an event in your region today:
“It may be a difficult topic to broach, but open communication between an employer and employee can usually prevent the uglier side of mental health litigation and compensation cases.”