Proctor : May 2018
7 PROCTOR | May 2018 News Mental health: The onus on employers by Queensland Law Society CEO Rolf Moses As part of the QLS program for Law Week (14-20 May), we have included a specific session on mental health – the Leading Wellbeing in the Legal Profession complimentary member breakfast on Thursday 17 May. Fundamentally poor health – in particular, poor psychological health – is not compatible with a profession dedicated to high competence, client service and sustainability. The member breakfast is organised by the QLS Wellbeing Working Group, which I chaired for four years. Its focus will be a panel discussion on the concept of `Do No Harm’, which was the theme for the 7th annual National Wellness for Law Forum hosted by Bond University in February this year. One of the panel members will be Belinda Winter, pictured, an employment and industrial relations partner at Cooper Grace Ward and a member of the QLS Wellbeing Working Group. A number of QLS members have suggested that they would appreciate guidance on the complexities of employment law and employee relations when dealing with mental health issues in the workplace. To shed light on some of these key issues, I asked Belinda to address several questions: From an employment law perspective, how are psychological and physical injuries different, particularly in terms of the obligations that employers have to manage them? This is a very complex answer, subject to a number of qualifying factors and exceptions; however, in brief: They are similar in that: • employers have an obligation under the Workplace Health and Safety Act 2011 (Qld) (WHS Act) to ensure, so far as is reasonably practicable, the health and safety of their workers. ‘Health’ in this context means both physical and psychological health • employers also have a duty to make reasonable adjustments for employees suffering from a psychological or physical injury under the anti-discrimination laws. However, psychological and physical injuries are treated differently under the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA). If a worker sustains a psychological injury “arising out of or in the course of employment” they may have a claim under the WCRA. For a psychological injury to arise out of or in the course of a person’s employment, their employment must be a “major significant contributing factor to the injury”. A psychological injury arising out of or in the course of employment will not be compensable under the WCRA if it arises out of “reasonable management action taken in a reasonable manner”. Do employers understand their obligations to address psychological health issues at work? In my experience with clients, a majority do not. Employers sometimes ignore the problem, too afraid of any legal claims that may arise as a consequence of performance managing an employee who is suffering from a mental illness. Other times, employers engage in unlawful conduct, knowingly or unknowingly, imputing various disabilities (often incorrectly) on their employees who are suffering from a mental illness. If I am an employee, do I need to disclose a mental health issue to my employer? If it results in long and/or regular periods of absence and/or affects your ability to perform your duties safely, you should disclose your mental health issue to your employer. Where do you see the greatest need for training to help employers address the management of mental health issues in the workplace? I recommend that employers ensure they have employee representatives who are trained in mental health first aid (much like having physical first aid officers). I also recommend that managers and human resource professionals receive practical training in the legal risks of managing ill and injured employees. What role can leaders take in creating a more healthy work environment? A huge role. Firstly, leaders should be mindful how their behaviour may impact others. Then, leaders should get to know their team, so they can recognise if there is a change in a team member, that may indicate a problem. And finally, be open about mental health issues, destigmatise it, talk about it and invite discussion. That way, if a member of your team needs help, they are more likely to ask for it. You recently became an accredited mental health first aid officer trainer. Why did you attain this accreditation and what does it mean? I provide a lot of training to my clients on the legal aspects of managing ill and injured employees. But this is not the complete picture. Employers need to accept that, statistically, they already have employees suffering from mental illness now in their workplace, and it’s okay and nothing to be afraid of. It is in the interests of all employers and employees to focus on prevention and good management of mental illness. This is where mental health first aid comes in. It completes the picture in my view. As a mental health first aid trainer, I deliver training to individuals who want to become accredited in mental health first aid, whether that be in the workplace, as a member of the community or within their own family. Thank you very much Belinda. Please note that a more detailed FAQ document on employment law obligations when managing mental health issues and psychological injures, developed by Belinda, is available. Look for ‘FAQ: Mental Illness and Health – An employer’s perspective’ at qls.com.au/wellbeing-resources. I’m looking forward to this session at Law Week, and hope as many practitioners as possible will join me at the breakfast, as well as the many other Law Week events.