Employers’ Obligation to Protect Employee Mental Health
What Obligations Do Employers Have For Employee Mental Health?
We’ve all taken a ‘doona day’ off work because we just can’t face it on that day. Or we know someone who has. It doesn’t matter whether the stress is arising from work or not, some days, you just want the world to stop, so you can get off.
But what about your obligations as a small business employer?
Employers have a duty to provide a safe system of work, which includes a duty to take reasonable care to avoid psychiatric injury to employees.
In the 2022 decision of Kozarov v Victoria, the High Court has stated that “the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee (just as other kinds of work are inherently and obviously dangerous to the physical health of the employee). In any such case, the employer is duty-bound to be proactive in the provision of measures to enable the work to be performed safely by the employee.”
So, it is clear that if you have a business where the work is known to create a risk of PTSD (such as
emergency services), then you have an obligation to take steps to protect your workers. In the Kozarov case, the Court found that as a result of the type of work done (by a solicitor working constantly with young victims of sexual assault), the duty of care arose at the time the employee started work, and that no later event was required to raise a duty of care.
But what if you run a business which has no obvious inherent risk, like retail? There may not be an
immediately obvious duty of care, beyond the general duty to provide a safe work environment.
There is an earlier 2005 case (Koehler v Cerebos) in which the High Court states that an employer “is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.”
What Is An Evident Sign?
As a small business employer your employment contracts may include a request that employees disclose any pre-existing condition or injury which might affect their ability to fulfil their role. Increasingly, and with less stigma being attached to mental health conditions, employees are disclosing existing conditions such as anxiety and depression in those declarations.
If you haven’t closely reviewed your employee acceptances of employment, perhaps now is a good time to do so.
There are also instances where employers engage people from employment agencies known to support individuals who have been out of the workforce for an extended period, or who experience a form of disability which impacts their ability to gain work. Some of those services are proud to state that they support people with mental health conditions. For example, EPIC shares that “Among EPIC’s cohort of job seekers, 38% have a diagnosed mental health condition.”
If you are engaging people you know have a mental health condition, or whom you should reasonably suspect may have a mental health condition, then a finding that there were “evident signs” of risk of psychiatric injury may well be made out. In those instances, as a small business employer, you should have in place a policy or process to ensure that someone in the workplace has the ability to identify and assist people with a mental health condition in order to provide a safe work environment.
As someone who has a lived experience of a suicidal crisis, MHFA Instructor, Donna Thistlethwaite, is passionate about creating safer workplaces.
“Often people spend more time with colleagues than they do with family and friends which may result in others miss the signs of poor mental health.
Having the support of a MHFA trained colleague can facilitate someone accessing treatment and can speed up their recovery, allowing them to return to strong performance and reducing the impacts of poor mental health which can include absence, conflict and poor performance. The skills a MHFAider learns improves their communication skills in other areas of business.
Mental Health First Aid helps to break down stigma and educates participants to recognise the signs that they, or someone else, is experiencing a mental health problem. Early intervention results in faster recovery which is great for both the individual and the business.”
Donna Thistlethwaite Mentally Wealthy
You Have A First Aid officer. Why Don’t You Have A Mental Health First Aid Officer?
You might be in a position where you suspect there are people in the workplace with mental health issues, but don’t have the first clue about how to identify who they are and, in another instance, you might know you have people with mental health problems, but not how to get the best out of them.
So Where Do You Start?
Take responsibility for the mental health of your workforce at work. If you sometimes wonder why it’s your problem and why employees can’t just ‘leave those issues at home’ and get on with their work, then someone with mental health first aid training could be a real asset in your workplace.
Once you realise you have the ability to make an impact, you empower yourself and your workforce and gain the potential to decrease the impact of mental health problems in the workplace.
Consider that almost 45% of people of working age are likely to experience mental health problems at some stage in their lifetime (ABS 2007), whether at home or at work, and if they are affected, their productivity will be too.
There are a large variety of support programs available for free to employees and small business employers, including the following:
Mental Health Resources for You and Your Workforce
Heads Up – https://www.headsup.org.au/
Mental wellbeing support for small businesses and individuals, including resources for employers, employees, managers and small business owners.
A free coaching program, designed to provide accessible, quality services for anyone finding it hard to manage life stress using Low-intensity Cognitive Behavioural Therapy practices aimed to help people break the cycle of negative or unhelpful thoughts.
Ahead for Business – https://aheadforbusiness.org.au/
Personalised resources and tools tailored to the specific needs of you as a small business owner.
[NSW] Mental Health at Work – https://www.nsw.gov.au/mental-health-at-work
– Free training and coaching for your workplaces, and other resources.
[QLD] Your Mental Wellbeing – https://mentalwellbeing.initiatives.qld.gov.au/
– Improving mental wellbeing resources for individuals.
[TAS] Mental Health and Wellness –
[VIC] Wellbeing and Mental Health Support for Victorian Small Business –
Mental health support for the challenges of running a small business.
[WA] Managing Stress and Anxiety – https://www.smallbusiness.wa.gov.au/people/managing-stress-anxiety.
Some businesses and professional industry organisations also offer Employee Assistance Programs (EAP), which have been around for a long time and are relatively easy to implement. Unfortunately, some issues with EAPs have been the small amount of use due to lack of knowledge of their existence, the cost to the employer, and employees who may be concerned that their problems will be reported to the employer if they use the service (even though that usually does not occur).
Just as you train First Aid officers in the workplace, you can now also have trained Mental Health First Aid officers. The training is usually offered in mixed mode or face to face and provides valuable insight into recognising mental health conditions and how to support people with those conditions in the workplace.
We were recently approached by a client who was concerned about the behaviour of a casual employee who failed to turn up for their shift after a discussion with their supervisor where the supervisor asked them to ‘go home and think about what you have done’.
Over the following weekend some text messages were exchanged between the supervisor and the employee attempting to clarify whether or not the employee was required for work on the Monday. One of the supervisor’s messages included words along the lines of ‘as long as there is no drama’.
These exchanges occurred in a context where the employer had engaged the employee from a disability support employment agency and knew that the employee suffered a mental health condition. In fact, the employee had stated “you told the agency you had experience working with people like me”. In the context of the employee’s condition (anxiety and depression), the condescending language expressed by the supervisor was more than unhelpful – it probably increased the employee’s anxiety and precipitated the employee’s failure to show for work on the Monday.
The employer consulted us about dismissing the employee for abandonment of employment.
Leaving aside that in a casual employment relationship an employee is entitled to refuse a shift without penalty (although here there was no clear communication to that effect), it is important that employers start considering the training of supervisors in the workplace to recognise and more appropriately respond to mental health conditions than was evidenced in the case study above.
Any employer that has more than 15 employees (so not a small business) should consider Mental Health First Aid training and having a Mental Health First Aid Officer (similar to a First Aid officer) in their workforce to better manage situations like that described here.
Clear, specific communication without the frustrated condescension may have completely changed the results of our client’s interaction with their employee.
Providing A Safe Work Environment
As a small business owner, you don’t need another job to do that detracts from your revenue generating activities. However, you still need to provide a safe workplace.
Safety at work is making sure that workers and visitors are not exposed to avoidable risks and hazards. This is usually done by assessing the risks in your workplace and putting in place safeguards to reduce or avoid those risks. People in workplace health and safety can help you with this, otherwise there are a large variety of resources online to help identify and manage usual risks in, say, an office. You then have a policy or procedure or both in place to help employees manage that risk.
Not every single risk needs to be identified and managed. Every person is expected to have a reasonable measure of common sense; like, don’t stand on a chair with wheels to reach something on a high shelf!
Assessing risks and managing them has to be reasonable in the context of the workplace and the people working there. If you know you have people in your workplace with mental health conditions, then having something in place to support them is reasonable.
“Many workplaces are recognising the importance of having Mental Health First Aid, the training can provide participants with the skills to recognise signs of mental health, assist during a mental health crisis, offer initial help, and connect individuals to the appropriate professional, peer, or social services. It is important to recognise that a MHFA is not to provide counselling, their role is to assist and support, but with ongoing professional development training, a Mental Health First Aid Officer can play a vital role in the workplace by implementing wellbeing tools to create a mentally healthy working environment.”
Jo Stevens from The Zen Zone is an advocate for Mental Health and provides Professional Development Training for Mental Health First Aid Officers.
Mental Health First Aid training
Mental Health First Aid Australia offers a variety of training and courses to train mental health first aid officers for your workplace. A first aid officer is not a medical officer and doesn’t provide diagnosis or treatment. It’s about learning the skills necessary to recognise symptoms of mental health conditions and support someone with a mental health condition to identify that support is available and where to find it.
Mental Health First Aid training with The Thrive Movement
You will learn. How to assist an adult who may be experiencing a mental health problem or mental health crisis until appropriate professional help is received or the crisis resolves, using a practical, evidence-based action plan. Including Depression and Anxiety, Psychosis, Substance Use Problems, Suicidal Thoughts and Behaviours, Deliberate Self Harm, Severe affects of Drug and Alcohol Abuse.
This course is based on guidelines developed through the expert consensus of people with lived experience of mental health problems and professionals.
Why Attend. Evaluations consistently show that MHFA training is associated with improved knowledge of mental illnesses, their treatments and appropriate first aid strategies, and confidence in providing first aid to individuals with mental illness. It is also associated with decreased stigma and an increase in help provided. An added benefit you will know how to look after your mental health better.
What’s the Format?
The 12-hour course can be delivered in 1 of 3 ways:
- Face-to-face: a 2-day course led by an accredited MHFA Instructor.
- Blended face-to-face: a self-paced e-learning component, followed by a 4-hour face-to-face session led by an accredited MHFA Instructor.
- Online: a self-paced e-learning component, followed by 2 x 2.5-hour video conferencing sessions led by an accredited MHFA Instructor.
Course and Instructor. For further information and enquiries for attending this course or a bespoke training for yourself or your team contact- ‘Derek Rogers of The Thrive Movement Australia’
How can Onyx Legal help you?
If you need help reviewing a risk assessment, an employment agreement, or preparing employee policies or procedures to support better mental health in your workplace, or simply concerned about managing one of your employees, make an appointment to talk with one of our team.