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WHS harmonisation

Mental health issues are prevalent in Australian workplaces with stress and psychosocial hazards identified as a major causative factor of occupational incidents, injuries and absenteeism. Evidently, these circumstances increase potential legal risk from both a WHS and workers' compensation perspective. There may also be other effects, such as impacts on workplace culture, reputation and commercial relationships.

Studies undertaken by the Australian Bureau of Statistics in 2007 identified that approximately 45% of Australians between the ages of 16 and 85 will experience a mental illness. Safe Work Australia also identified mental stress claims as the most common and costly workers' compensation claims, with the main categories being workplace pressures, bullying and harassment.

Commonwealth agencies have structured criteria and mechanisms for recruiting suitable candidates for roles and are also required to adhere to equal opportunity in employment principles. Balancing these obligations and identifying, managing and appropriately supporting workers who suffer from mental health issues or are susceptible to particular stress can be difficult to manage.

Under WHS legislation, businesses have a duty to eliminate or minimise potential risks to health in the workplace, so far as is reasonably practicable. The duty extends to the elimination of risks to psychological as well as physical health.

One way to eliminate or minimise risks, in the context of psychological health risks, is to have clear WHS management systems that provide appropriate mechanisms for managing mental health issues in the workplace. 

A case that highlights the risks that the Commonwealth Government faces when managing alleged instances of mental health issues is Sidhu and Comcare [2014] AATA 671. The case arose following a series of disputes between a Commonwealth Government Australian Public Service Executive Level 1 Officer, Ms Sidhu, and her manager about discrepancies in time recording, unauthorised and unapproved study leave and poor performance resulting in a compensation claim for an "adjustment reaction" under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Ms Sidhu felt her manager's actions during these disputes were unreasonable. She claimed that the rejection of study leave, access to her log-on and log-off building access records and poor mid-year performance rating were examples of intimidation and that her manager used her position to intimidate and scrutinise her work and career. Ms Sidhu could not justify the discrepancies in the time recording. The evidence provided identified that study leave was not granted due to unsatisfactory performance and communication failures, but Ms Sidhu claimed that the delayed approval of study leave was unreasonable. The Tribunal held that this delay was not deliberate.

Ms Sidhu also claimed that there was insufficient support to assist with her under performance and inadequate guidance to complete the performance assessment. However, the Government's evidence showed that there was adequate documentation, support and sufficient guidance in the Australian Tax Office's corporate documents to help her to complete the assessment. 

Ms Sidhu said that working in her team was affecting her health and requested a transfer. This was supported by her manager, who said that she would be required to note the outstanding time recording and unauthorised leave on the system. The Tribunal agreed that these actions were not unreasonable.

The Tribunal's key issue to consider was whether the adjustment reaction was compensable given it was due to reasonable administrative action undertaken in a reasonable manner. Overall, the Tribunal held that reasonable administrative action was taken in the circumstances. It did not disagree that Ms Sidhu was suffering from an adjustment disorder and noted that this case manifested from the breakdown of the relationship between a supervisor and an employee, and that this adversely affected the level of trust between the two and led to a considerable amount of hostile action by both parties.

The Tribunal identified that the evidence did not support the claim that the manager's administrative actions were unreasonable or that the actions were taken by Ms Sidhu in a reasonable manner. 

WHS implications of this case

Although this case was about eligibility for workers' compensation, it provides valuable insight into the Tribunal's view of reasonable steps that organisations should be taking when managing alleged instances of mental health issues and/or associated risks. 

Sidhu and Comcare also shows that compensation cannot be given for an adjustment disorder when reasonable administrative action has been taken. It also illustrates the need to implement appropriate systems that sufficiently manage workplace disputes. 

As a Commonwealth Government entity, the ATO is also bound by the Work Health and Safety Act 2011 (Cth). As such, a general duty
exists for the ATO and all Commonwealth Government agencies as persons conducting a business or undertaking (PCBU), to ensure so far as is reasonably practicable, the health, safety and welfare of all workers, including managers and executives.

This requires taking reasonably practicable steps to provide and maintain a work environment without risks to health and safety, as well as adequate welfare facilities for all workers, including volatile workers. In doing so, the PCBU should assess the risk of volatile worker behaviour as a hazard and implement sufficient systems to control the risk of this occurrence.

PCBUs need to implement appropriate controls to minimise the frequency of conflict in the workplace, to avoid the breakdown of communication and eliminate the presence of a negative culture to improve the wellbeing and general morale in the workplace.

To do this, PCBUs can:

  • encourage feedback from workers and improve consultation and communication strategies
  • promote a positive culture of collaboration in the workplace to avoid disputes escalating
  • encourage all worked to actively participate in conflict management and dispute resolution training, and
  • implement clear systems and processes to ensure workers understand the expectations of their roles.
We would like to acknowledge the contribution of Katherine Agapitos to this article.
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