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WE HAVE been seeing investigations by workplace safety regulators into allegations of psychologically unsafe workplaces that expose workers to the risk of psychological and physical injuries. State governments are funding mental health plans and initiatives and the federal government has announced a Productivity Commission Inquiry into the role of mental health in the Australian economy.

What is mental health?
The World Health Organization defines mental health as: “A state of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.”

In Australia, work health legislation requires a business to protect its workers from psychological risks as well as physical risks to their health and safety, so far as is reasonably practicable. “Health” means both physical and psychological health.

Apart from the potential legal risks of not adequately managing work-related mental health conditions, it makes good practical business sense to prevent or minimise risks to workers’ psychological health, otherwise, your business may experience human, reputational and financial costs.

When a work-related mental health condition arises, the worker may need to be medically examined by a qualified medical practitioner to determine whether they are able to safely perform their duties.

What can an employer do?
Can an employer direct a worker with a mental health condition to attend an independent medical examination?

An employer can issue a reasonable and lawful direction to an employee to attend an independent medical examination in compliance with its workplace health and safety duties. There is a duty on the worker to comply with this reasonable requirement of the employer.

Where the condition may expose the worker or others in the workplace to risk, such a direction is likely to be reasonable. We recommend that the ability of the employer to direct an employee to attend an IME is expressly written into contracts of employment so that the employee is on notice in advance of this requirement when the direction is subsequently given. Such a direction was given in a performance management process in the case of Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union [2018] NSWIRComm 1066 (26 October 2018). This case involved an industrial dispute arising out of an employer’s direction to an employee to attend an independent medical evaluation. The employer was concerned about the impact the disciplinary process would have on the worker’s health, particularly because he had reported suffering psychological injuries from previous investigations.

The employer argued that it had a duty under the state WHS act to take precautions to eliminate or minimise risks to ensure the health and safety of employees, and the worker had a duty to follow reasonable directions so it could comply with that duty.

Legal risks
Businesses need to appropriately manage work-related mental health conditions. If they do not, legal risks may arise including workers’ compensation, workplace bullying, harassment, discrimination, general protections, unsafe workplace and negligence claims.

Safe Work Australia has issued national guidance material on how to meet your duties to prevent harm and support recovery for a psychological healthy workplace that eliminates or reduces the risk of psychological and physical injuries.

Does your safety management system cover how to identify, assess and manage psychological hazards and risks in the workplace? Safe Work Australia’s national guide may assist.

Businesses can arrange an independent audit that is subject to legal professional privilege to determine whether the business, its owners and managers are exposed to legal risk and which provides recommendations on managing this risk. We conduct this type of legal audit and reporting program for our clients to identify practical measures that minimise legal risk in this area.

The management of mental health condition issues in the workplace can be fraught with difficulties and legal risk either during the employment or when the employment comes to an end.

You should seek professional advice on the particular facts and circumstances in managing any mental health condition issues in your workplace.

* Gina Capasso is special counsel at KHQ Lawyers

This article appeared in the January 2019 edition of DCN Magazine

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