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Mental health matters: "sensitive" worker wins appeal

6 March 2014

Last month saw surprising outcomes in two cases both involving workers with mental health conditions and their claims of unfair treatment.

The first case involved a government worker's appeal to the Administrative Appeals Tribunal (AAT) that he was entitled to compensation for a work related psychological injury having been diagnosed with Adjustment Disorder and depression. The AAT found in his favour with Deputy President Robin Handley describing the worker's manager's behaviour as "similar to that of a schoolyard bully - rude and intimidating".

Some years previous to his claim, the worker had taken time off for stress and Deputy President Handley stated that his manager was well aware of the worker's "ultra-sensitivity" and should have adjusted his management style accordingly. Instead, the manager's approach was "extremely insulting" to the worker and "insensitive to [his] prior history of workplace stress, which should have been known to [the manager], and at times took the form of personal insults".

The appeal was upheld, overturning Comcare's previous decision not to allow the worker compensation.

Employee Relations 101 I ER101 training iHR Australia v2 18.2.14

The second case was an unfair dismissal application to the Fair Work Commission (FWC) from a worker formerly employed at a large resource corporation.

After 35 years' service the worker was diagnosed with depression. His performance began to suffer and he requested a transfer to another site due to factors at work which he said exacerbated his condition. During the disciplinary process and meetings about his situation the employee displayed "abusive, disrespectful and intimidating conduct" towards the company's employee relations manager, which ultimately led to his dismissal.

The worker's claim was not upheld, however Commissioner Bernard Riordan urged the company "to consider the implementation of a new policy in relation to bona fide requests for medically based transfers" and further described the company's response to the worker's request for transfer as "bordering on being inhumane".

These developments highlight the growing need for employers to be aware of mental health in the workplace and what reasonable adjustments they may be expected to make to assist workers with health conditions, including mental health, to carry out their roles. Employers must not simply dismiss individual needs but should explore options with the worker and assess their viability for the business before taking action.

Equally as important is that there is a culture where workers feel comfortable to approach management or HR staff if they have issues and require support, and know what to expect when they do so. This is dependent on the everyday behaviour of managers within the organisation.

As a first step, employers should ensure that policies and procedures are all up to date and that appropriate training is provided to staff. This includes training managers on how to deal with these issues, but also providing workplace harassment, bullying and discrimination training to employees so that they are aware of their rights and obligations and what constitutes reasonable and unreasonable management action.

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