Michael Kay - Wallmans Workplace Relations - Legality behind OHS/WHS psychological risk for large...

SA Safety Symposium | May 2016

Practical skills to address psychological risk in

the workplace - a safety lawyer’s perspective

Michael Kay

Partner, Wallmans Lawyers

South Australian Safety Symposium 2016

What will we cover?

1. How big is the problem – the numbers

2. Psychological claims in the workplace

3. Managing psychological legal risk in the workplace

4. Communication tips and traps

5. General skills for promoting psychological wellbeing

in your workplace

2


Statistics – The extent of the problem...

• Almost half of all Australians will have a mental

health condition*

• 1 in 5 employees affected by a mental health

condition**

• Costs $11 billion annually due to absenteeism,

reduced productivity and compensation claims**

Sources: *ABS 4326.0 **Heads Up

3


Statistics – The extent of the problem

• 3 – 4 working days off per month for each person

experiencing depression**

• Over 6 million workings days lost each year in

Australia**

• Query lack of awareness and social stigma around

mental illness

• Staff turnover and poor morale affects all

Source: **Heads Up

4


What are psychological injuries in the

workplace?

• General increase in psychological claims

• Often concurrent with physical injury claims

• Query if reflects awareness and recognition rather than

increase in mental health issues generally

• Depression, anxiety, stress (and related adjustment

disorder) increasingly common

5


Psychological injuries in the workplace –

what the predominant causes?

• Consequence of physical workplace injury (i.e. back

pain)

• Discrete workplace trauma (i.e. witnessing a robbery)

• ‘Administrative bullying’ (i.e. unreasonable workload)

• ‘Schoolyard bullying’ (i.e. threats, intimidation, assault)

• Personal pressures affecting work

6


Psychological injuries in the workplace –

performance management

• Increasing area of risk and disputation

• Rarely managed well and always difficult to manage

(amount of time spent at work, significant part of our

lives, difficult to be told not doing it right)

• Difference in personalities and communication styles

• Critical topic – more information in other sessions

7


The legal framework (very briefly)...

• Work Health and Safety Act 2012 (SA)

• Primary duty of care – s19 WHS Act

• Obligation on PCBU to provide a safe workplace as

far as is reasonable practicable

8


The difficult question - what is reasonably

practicable in terms of mental health?

• Relevant matters – s18 WHS Act

• Degree of harm that might result from hazard or risk

• What person concerned ought reasonably to know about

the hazard or risk and eliminating hazard or risk

• Cost of minimising risk – cost disproportionate to risk?

9


The difficult question - what is reasonably

practicable in terms of mental health?

• Still a fair degree of uncertainty in terms of “how far” an

employer must go to address mental health issues

• Best to err on the side of caution given significant

consequences if things go wrong

• Where to draw the line in terms of resourcing for smaller

business – EAP example

10


The legal framework –worker obligations

• Employee obligations – s28 WHS Act

• Employees must take reasonable care of their health

and safety, and of others

• Employees should notify employer if they are of the

view their illness is impacting on their ability to

perform role safely

11


(Written) communication tips - managing risk

• Carefully drafted policies, procedures and training

are critical for clarity and objectivity

• Essential topics:

• WHS

• Bullying, discrimination and harassment

• Performance management

• Disciplinary procedures

• Grievance procedures

12


(Written) communication tips - managing risk

• Always document discussions of concern (but take

care with tone, particularly if using email)

• Always give the opportunity for the employee to put

their concerns in writing/provide a response

• Try and put some “good” around the “bad” – end

correspondence on a positive note (but don’t water

down your concerns either)

13


(Verbal) communication tips mitigating and

managing risk (cont.)

• Must strike balance between direction and support

• Cannot be everyone’s friend

• Communication is key

• Be mindful of tone and demeanour

14


(Verbal) communication tips - managing risk

(cont.)

• Always speak to the employee in a private setting

• Respect confidentiality (but don’t guarantee it)

• Develop a plan and/or strategy with the employee

15


General tips and strategies - managing risk

(cont.)

• Identify at risk employees include people working

autonomously or in isolated/remote locations, health

workers, social workers, police etc

• Have a serious incident response plan – witnessing

a physical injury in the workplace (i.e. amputation or

death) - immediate actions – counselling, support

network?

16


Common mistakes and traps....

• Failing to address bad behaviour because other

attributes deemed important (e.g fees billed)

• Failing to address allegations of bullying promptly

• Not dealing with performance concerns in a timely

manner

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Common mistakes – missing warning signs...

• Unexplained absenteeism and lateness to work

• Appearing tired and fatigued

• Easily angered, overwhelmed or upset

• Difficulty meeting deadlines or making decisions

• Refusing invitations to lunch or after work drinks

18


Finishing on a positive note – how to foster a

healthy workplace

• Raise awareness

• Lead by example – walk the talk

• Promote a positive mental health culture

• Training (i.e. leadership and management practices)

19


Finishing on a positive note –

how to foster a healthy workplace

• Monitor workload, hours and resourcing

• Ensure positive feedback is provided

• Recognise and celebrate achievement

20


L5, 400 King William St, Adelaide SA 5000 (08) 8235 3000 wallmans.com.au

Questions?

L5, 400 King William St, Adelaide SA 5000 (08) 8235 3000 wallmans.com.au

Wallmans LawyersWorkplace Relations, Employment and Safety

Michael Kay

Partner and team leader

(08) 8235 3044

michael.kay@ wallmans.com.au

Michael Kay - Wallmans Workplace Relations - Legality behind OHS/WHS psychological risk for large...

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