Mental health issues and the duty to protect workers from risks to their mental health

Understanding and managing the risk of mental health and psychological injury in the workplace is a critical part of managing a modern workforce. As awareness and understanding of mental health issues have grown over the years, so too has awareness of the causes of risks to mental health and the potential negative impact these can have on not only individuals but the broader workforce.

Despite this, how to manage and appropriately deal with mental health issues in the workplace remains a complex area. A wide range of events and circumstances can impact on mental health. Compounded with an individual’s strengths, vulnerabilities and personality traits, it can be a challenge for employers to understand the parameters of their legal duty to take reasonable care for the safety of their employees and what steps can be taken to protect them.

Consequently, it is important that employers not only understand their duty of care but also what options and actions are available to them to proactively identify and cooperatively manage mental health risks and issues in the workplace.

What is an employer’s duty of care?

An employer owes a duty of care to employees to take reasonable care to avoid conduct that it could reasonably foresee may cause injury to employees.

That an employer has a duty of care towards its employees with respect to mental health/psychological injury is not a new concept. ^[1] Further, that psychological injury may be triggered by stress has also been accepted at common law for a number of years. ^[2]

It is also not the only duty employers have with respect to employees’ mental health. With advances being made in understanding the impacts of risk factors and psychosocial hazards, a range of additional legislative duties and protections now exist.

Workplace health and safety legislation across Australia provides that a person conducting a business or an undertaking must ensure, so far as reasonably practicable, that the health and safety of workers, as well as other persons, are not put at risk from the work carried out by the business. This duty includes (but is not limited to) providing and maintaining safe systems of work and providing necessary information, training, instruction and supervision.

Failure to appropriately manage and respond to mental health concerns can give rise to a range of claims by employees. These include workers’ compensation claims under workers’ compensation legislation, adverse action and anti-bullying order applications under the Fair Work Act 2009 (Cth), and disability discrimination claims under State and Federal anti-discrimination legislation.

Reasonable foreseeability

An individual’s mental health can be impacted by various factors, including personal and work-related. Genetic predisposition, traumatic events and experiences as well as personal and work-related stress can all have a negative impact. Whether or not a risk of injury was reasonably foreseeable depends on a range of factors including:

• the employee’s role, duties and seniority;
• the alleged cause of the injury: in particular, whether it arose out of action by management (such as workload or performance management) or a traumatic event (for example, witnessing a co-worker’s death);
• the level of knowledge the employer had of any relevant pre-existing vulnerabilities or medical conditions of the employee; and
• importantly, whether the employer was put on notice that the employee was at risk of psychological injury in the circumstances (for example, whether the employee raised concerns about their mental health, or displayed conduct and behaviour that would indicate such concern).

Where an employer breaches its duty of care and that breach causes psychological injury to the employee, it does not matter if the employee’s psychological response is extreme.

The decision of the Supreme Court of Queensland in Keegan v Sussan Corporation (Aust) Pty Ltd ^[3] demonstrates that, even where the behaviour of which an employee complains is perceived as trivial, where a complaint is made, failing to deal with it properly can result in an employer breaching its duty of care.

Ms Keegan was a former Assistant Manager employed by Sussan Corporation. In 2010, while Ms Keegan was on a period of parental leave, her manager left and Sussan employed a new Store Manager, Ms Clarke. During the recruitment process, Ms Clarke’s former employer did not provide Sussan’s Queensland Business Manager, Ms Makarein, with a favourable reference. In particular, Ms Makarein was informed that the former employer would not hire Ms Clarke again and that Ms Clarke “would need to learn management skills and people skills”. Ms Makarein nonetheless proceeded to employ Ms Clarke as Store Manager and provided her with limited training and induction.

Upon Ms Keegan’s return to work, she experienced behaviour from Ms Clarke that she felt amounted to bullying. This behaviour included Ms Clarke leaving Ms Keegan out of management matters, speaking to her aggressively and making unwarranted critical remarks. Despite initially giving Ms Makarein feedback (on day 3 of her return to work) that her relationship with Ms Clarke was fine, on day 4, after further criticism from Ms Clarke, Ms Keegan contacted Ms Makarein and complained about Ms Clarke’s behaviour.

Sussan had a bullying and harassment policy which relevantly required that complaints were to be taken seriously, treated confidentially and investigated. Ms Makarein did not follow this policy. Instead, she advised Ms Keegan to “put some lippy on and go home to [her] bub” and that she would speak with Ms Clarke about the matter. Ms Makarein did speak with Ms Clarke. However, she simply told her to be “more mindful” of how she dealt with Ms Keegan.

Ms Clarke’s behaviour towards Ms Keegan worsened. Ms Keegan again complained to Ms Makarein, and was told that Ms Keegan had to “work it out for herself”.

Shortly afterwards, Ms Keegan experienced a decline in mental health and was certified as being unable to return to work. Following a successful application for workers’ compensation, Ms Keegan brought a common law claim against Sussan alleging negligence, breach of contract or breach of statutory duty.

Sussan denied liability. It argued that Ms Keegan’s injury was extraordinary and unforeseeable in comparison to the “essentially unremarkable behaviour” of Ms Clarke and that Ms Keegan had pre-existing personality traits that made her prone to such injury.

The court did not accept these arguments. It held that initially, a reasonable person would not have foreseen Ms Keegan suffering a psychological injury while Sussan was unaware of Ms Clarke’s behaviour. Ms Keegan’s first complaint to Ms Makarein, however, put Sussan on notice that if the matter wasn’t appropriately addressed, it was reasonably foreseeable that Ms Keegan would suffer an injury.

In offering “patronising advice” and taking informal steps to deal with Ms Keegan’s complaint, Ms Makarein did not take the matter seriously and failed to follow Sussan’s bullying and harassment policy. Sussan was found to be in breach of its duty of care and Ms Keegan was awarded just over $300,000 in damages (with around $66,000 to be refunded to WorkCover Queensland).

Not all psychological injuries equal a breach of duty

While an employer’s duty of care extends to injuries to employees that may result from workplace stress, it does not mean an employer has a duty to provide a stress-free workplace. Further, that an employer may not have exercised the best judgement in dealing with a particular employee’s issue does not necessarily mean the employer will have breached its duty of care.

In the recent decision of Christos v Curtin University of Technology (No 2), ^[4] the Supreme Court of Western Australia held that Curtin University neither breached Dr Christos’ employment contract nor its duty of care following Dr Christos’ sustaining a psychological injury which he alleged was caused by the University failing to address his grievances and complaints of bullying, harassment and victimisation.

In May 2002, Dr Christos made a formal written complaint under the University’s dispute resolution policy. That policy provided that grievances should be resolved within 3 months.

In August 2002, certain students made complaints to the University against Dr Christos. Dr Christos was stood down from teaching while the University investigated.

In November 2002, Dr Christos went on sick leave. Most of the students’ complaints were not upheld. However, Dr Christos effectively did not return to work. Instead, he took long service leave, annual leave and sick leave until being certified as totally unfit for work in February 2003 due to a stress-related psychological condition.

During 2003, although there were communications between Dr Christos and the University, action to address Dr Christos’ written complaint — made in May 2002 — did not progress. This was due initially to Dr Christos being on sick leave, then due to his continuing to expand on his grievances.

In July 2004, Dr Christos took his work computer to the University IT for repairs. It was discovered that the computer contained pornography and music that had been illegally downloaded. Dr Christos’ employment was subsequently terminated in October 2004.

Following unsuccessful proceedings for wrongful dismissal, in February 2009 Dr Christos commenced proceedings against the University.

In dismissing Dr Christos’ claim, the court found that while the grievance policy imposed a “mutually binding obligation” on both Dr Christos and the University:

• Dr Christos’ claims relating to matters pre-February 2003 were out of time per the Limitation Act 1935 (WA); and
• his psychological injury was caused by the 2002 suspension following the student complaints.

In relation to the delayed progress of Dr Christos’ grievances and alleged bullying and harassment, the court found:

• Dr Christos was not bullied, harassed or victimised;
• while the decision to suspend the grievance process until Dr Christos returned to work “may have been a wrong decision” retrospectively, “not every wrong decision is a negligent decision”;
• Dr Christos’ correspondence did not “show a person obsessed with solution of his grievances but a person adding to the list, everyone who either disagreed with him or failed to respond in a manner [Dr Christos] felt appropriate”;
• not dealing with the grievance while Dr Christos was on leave was not a breach by the University of its duty of care;
• similarly, given Dr Christos was medically certified as unfit for work, the University was reasonably exercising its duty of care by not permitting Dr Christos to work during those periods;
• the University’s correspondence and responses reflected that the University was concerned about Dr Christos’ “fragile state” and wanted to “resolve outstanding issues if possible”; and
• even if the University did breach its obligation regarding dealing with Dr Christos’ grievances, “it would have made no difference to his condition” and was not the cause of Dr Christos’ ongoing disability as the evidence “abundantly” illustrated that Dr Christos “would not be satisfied with the resolution of the grievance” unless the resolution was in his favour.

Managing and promoting mental health and wellness

Because no two employees are the same, managing psychological injury risks and supporting mental wellbeing can be a challenge for employers. Managers cannot control an employee’s underlying personality/potential vulnerability or control stressors outside of the workplace.

That means it is important for employers to understand the scope of their duty of care and obligations and have in place the tools and support necessary to meet these obligations. Similarly, it is important that employees understand the role they play in taking reasonable care of their own health and safety including by:

• supporting and promoting a safe workplace; and
• informing managers if they believe that personal medical circumstances are impacting upon their ability to safely perform their work.

Having clear policies and procedures to manage risk and complaints can help managers and employees achieve these goals. However, as demonstrated in the Keegan case, policies alone are not enough to meet these obligations in the absence of practical guidance and education of employees to ensure the policies are followed. That means:

• educating managers and employees to recognise and address safety risks, including risks to mental health;
• ensuring that managers and employees are appropriately trained and know to comply with workplace policies, including in relation to making and handling complaints;
• where a breach of policy occurs, taking steps to address the issue in accordance with the policy, including taking disciplinary action where appropriate;
• managing performance and conduct issues promptly, and where suitable, providing additional support and training;
• supporting and assisting managers to recognise and appropriately respond to factors that may give rise to an employee’s stress or that may mask underlying concerns, such as appropriately managing workloads and being alert to absenteeism;
• providing managers with support to sensitively and properly discuss and manage health issue disclosures made by employees, including in relation to mental health; and
• promoting a culture of managers and employees otherwise conducting themselves appropriately in the workplace, including by treating each other with respect and courtesy.

This article was first published in Inhouse Counsel, Vol 19 Nos 6-7, August 2015.