Prevention and Management of Stress Related WorkCover Claims

Transcription

1 Prevention and Management of Stress Related WorkCover Claims Ross McSwan Barrister Queensland Bar

2 Page 1 of 37 LEGALWISE SEMINARS SCHOOL LAW WEDNESDAY, 10 SEPTEMBER 2014 Preventing and Managing Stress Related WorkCover Claims Presenter: Ross McSwan, Queensland Bar rossmcswan@qldbar.asn.au 1 This paper is not a reproduction of the presentation that will be given to the participants. Rather it is a précis of the theory, practical suggestions and case law. The precis is meant to be of assistance to participants both by way of preparation beforehand and as a resource after the presentation. Introduction 1. It is in everyone s interest to have healthy and functioning staff. Often the most difficult people for school leaders to manage are their own staff. There can be sense that some managers are comparatively powerless to take action against difficult employees or unable to respond readily against misbehaving employees. One of the more challenging aspects is the prevention and management of stress related WorkCover claims, where there can a challenging cocktail of apparent poor behaviour, unsatisfactory performance and mental health issues. This paper sets out practical strategies to assist leaders of Queensland schools in meeting their duty of care in a sensitive, respectful and collaborative manner. There are nine parts to the paper 2 which include: Part One What is work related mental stress? Part Two Key findings from the first Safe Work Australia report devoted to work-related mental stress (April 2013) and other alarming statistics 1 Ross McSwan, Barrister: Chambers, Inns of Court - Sunshine Coast, Level 2, Ocean Central, 2 Ocean St, Maroochydore. (07) or rossmcswan@qldbar.asn.au 2 The framework of this paper is adapted from the Australian Government Comcare publication Working well: An organisational approach to preventing psychological injury, A guide for corporate, HR and OHS managers 2008

3 Page 2 of 37 Part Three The framework for work-related mental stress in Queensland and defining key terms from the legislation Part Four What causes psychological injury? Examining work content and work context Part Five Knowing the warning signs of psychological injury Part Six Steps to prevention of psychological injury (The Primary Response) Part Seven What can be done to reduce the consequences of workplace? stress? (The Secondary Response) Part Eight Treatment of the condition and restoration of full health (The Tertiary Response) Part Nine Conclusion Part One: What is work related mental stress? 2. In addressing what causes psychological injury it is helpful to first discuss what stress is and how it may develop into a psychological injury. In doing so reference is made to the first Safe Work Australia report devoted to work-related mental stress publication Incidence of Accepted Workers Compensation Claims for Mental Stress in Australia (April 2013). That publication describes work-related mental stress as the adverse reaction experienced by workers when workplace demands and responsibilities are greater than the worker can comfortably manage or are beyond the workers capabilities (Leka et al. 2003). 3 3 Safework Australia Publication Incidence of Accepted Workers Compensation Claims for Mental Stress in Australia April 2013 pg1

4 Page 3 of 37 The report is especially significant because the data represents those workers who are covered by workers compensation schemes (employees) and who have been successful in receiving compensation. 3. The report notes that the term mental stress is assigned to claims where an employee has experienced an injury or disease because of mental stress in the course of their employment. Mental stress includes sub-categories distinguished by the nature of the actions, exposures and events that might lead to disorders as specified. The sub categories are: i. Work pressure mental stress disorders arising from work responsibilities and workloads, deadlines, organisational restructure, workplace interpersonal conflicts and workplace performance or promotion issues. ii. Exposure to workplace or occupational violence includes being the victim of assault by a person or persons who may or may not be work colleagues; and being a victim of or witnessing bank robberies, hold-ups and other violent events. iii. Exposure to traumatic event disorders arising from witnessing a fatal or other incident. iv. Suicide or attempted suicide includes all suicides regardless of circumstances of death and all attempted suicides. v. Other mental stress factors includes dietary or deficiency diseases (Bulimia, Anorexia). vi. Work-related harassment &/or workplace bullying repetitive assault and/or threatened assault by a work colleague or colleagues; and repetitive verbal harassment, threats, and abuse from a work colleague or colleagues. vii. Other harassment being the victim of sexual or racial harassment by a person or persons including work colleague/s. 4. Stress itself is not a disease or injury and feeling stressed is not sufficient to establish a workers compensation claim The term is used loosely to describe the feelings that range from feeling pressured to being psychologically or psychiatrically ill. According to the

5 Page 4 of 37 research of Kendall 4 a number of forms of harmful stress have been recognized and are described as follows: a. Post traumatic stress disorder develops as a response to an acute stressful event or situation, such as witnessing a violent act. b. Acute stress usually involves a rapid response to an abrupt, single, easily identified cause (such as conflict in the workplace). c. Chronic stress, by contrast, is a build-up of pressure over a long period of time and has been defined as an ongoing internal reaction to external circumstances when the ability to cope with those circumstances is impeded. 5 Part Two: Key findings from the first Safe Work Australia report devoted to work-related mental stress (April 2013) and other alarming statistics 5. The full extent of mental stress in Australian workplaces (prevalence) is not known but is likely to be greater than indicated by workers compensation statistics because not all workers with mental stress apply for or receive compensation for their illness. For example the Australian Bureau of Statistics (ABS) Work-related Injuries Survey showed that 70% of workers who reported they experienced work-related mental stress did not apply for workers compensation. Stress is the second most common cause of workplace compensation claims in Australia, after manual handling and yet stress claims are one of the most difficult areas for WorkCover claims. 6 4 Kendall E., Murphy P,, O Neill V. and Busnell S. Occupational Stress Factors that Contribute to its Occurrence and Effective Management: a Report of the Workers Compensation and Rehabilitation Commission of Western Australia, Centre of Human Services, Griffith University, August 2000 pp Kendall and others, p.8 6

6 Page 5 of Set out below are key findings from the report that are more relevant to the teaching profession: a. Mental stress claims are the most expensive form of workers compensation claims because of the often lengthy periods of absence from work typical of these claims. b. Mental stress claims are predominantly made by women. c. Men and women are more likely to make a claim for mental stress as they get older but after they reach 54 years the likelihood that they made a claim decreases. d. More professionals made claims for mental stress than other any other occupation with over a third of their claims made for work pressure. e. There were more mental stress claims made for work pressure than any other subcategory and work pressure is the main cause of mental stress claims for older workers, peaking for those aged years. f. General clerks, school teachers and police officers accounted for the majority of claims for work pressure. g. Women were around three times more likely than men to make a workers compensation claim due to work-related harassment &/or workplace bullying. 7. Most such claims develop over long periods, often in response to the interaction of a number of work related and other factors. Psychological injury claims, while relatively small in number, have a significant impact on an agency s workers compensation premium. According to WorkCover Qld 7 the average duration of a psychological or psychiatric injury worker s compensation claim is days and the average finalised time lost claim is over $40,000. Lost time as a result of a secondary psychological injury can be twice as long as that of a physical injury only. According to Comcare 8 the cost is the highest of any claim type average psychological injury claim and costs can be four times greater than the cost of other types of claims. This is because they usually involve extended periods of time off work, and higher medical, legal and other claim payments compared to other types of claims Ibid Working well: An organisational approach to preventing psychological injury

7 Page 6 of 37 Part Three: The framework for work-related mental stress in Queensland and defining key terms from the legislation 8. The Work Health and safety Act 2011 (Cth) came into effect on 1 January 2012 and provides uniform occupational health and safety laws in response to inconsistencies in laws across the nation that were causing problems for employers and employees. There was little change for Queensland since the national model was based on Queensland OHS laws. Under the new legislation the onus of proof is on the prosecution to show that the employer did not take all reasonably practicable steps to avoid injury. 9. In Queensland there are three options for employees wishing to pursue compensation for psychological injuries suffered in the course of employment: a. WorkCover the most efficient and provides a no fault jurisdiction 9 ; b. an action in negligence if the worker believes that the employer acted negligently and is at fault for the injury suffered ; c. an action in contract. 10. Work Cover claims require less proof than an action in negligence and psychological / psychiatric injury is specifically included. Workers compensation is payable to a worker who sustains an injury within the meaning of the Work Cover legislation. Injury includes a psychiatric or psychological disorder that arises out of, or in the course of employment. When making a decision a claims representative will apply criteria and exclusions outlined in the Worker s Compensation and Rehabilitation Act 2003 (Qld) (the Act). The Act specifically excludes a psychiatric or psychological disorder arising out of, or in the course of employment, in any of the following circumstances: a) reasonable management action taken in a reasonable way by an employer in connection with a worker s employment 10 ; and b) the worker s expectation or perception of reasonable management action being taken against the worker 11 ; and 9 Workers Compensation Act Qld (2003) s 32 (1) 10 Op cit 32(5) a 11 Op cit 32(5) b

8 Page 7 of 37 c) action by the Authority or an insurer in connection with the worker s application for compensation Thus in Queensland a psychiatric injury will only be accepted as an injury under the Act if work is the major significant contributing factor and the exclusions in the Act do not apply, namely that the psychiatric or psychological disorder arose out of reasonable management action taken in a reasonable way by the employer in connection with the worker s employment. Examples of actions that may be considered reasonable management actions taken in a reasonable way include: a. action taken to transfer, demote discipline, redeploy, retrench or dismiss a worker; b. a decision not to award or provide promotion, reclassification (or transfer of), leave of absence or benefit in connection with the worker s employment According to Comcare 14 the majority of psychosocial injury claims are not the result of a major traumatic event or critical incident. The evaluation of claims shows that most of the claims develop over a period of six months or more and often in response to the interaction of a number of work related and other factors. The following table sets out a broad view of what accounts for psychological injury claims in Australian government organisations. Table 1: Summary of what accounts for psychological injury claims in Australian government organisations Cause % (approx) Work Pressure 50% All harassment /bullying combined 25% Exposure to workplace or occupational 10% violence Exposure to a traumatic event Less than 5% 12 Op cit 32(5) c 13 WorkCover Qld Psychological or Psychiatric Injury Claims (information sheet ) revised 7 February Op.cit Working Well An organisational approach to preventing psychological injury pg 10

9 Page 8 of 37 Part Four: What causes psychological injury? Health Impact, Cost Examining work content and work context 13. The table below 15 sets out a way of considering the factors that cause work related stress is by dividing them into those: a. relating to the context in which the work takes place. (or is to say how the work is organised); and b. the content of the work (or what the job involve. Table 2: Summary of risk factors Work Context Risk Factor Organisational culture and function Role in organisation Career development Decision Latitude/control Interpersonal relationship at work Customer-related Poor communication, low levels of support for problem-solving and personal development, lack of definition of organisational objectives. Role ambiguity and role conflict, responsibility for people. Career stagnation and uncertainty, under-promotion or overpromotion, poor pay, job insecurity, low social value to work. Low participation in decision making, lacking of control over work (control, particularly in the form of participation, is also a context and wider organisational issue). Social or physical isolation, poor relationships with superiors, interpersonal conflict (including harassment and bullying), lack of social support. The need to hide negative emotions during interactions with clients/customers, unrealistic customer expectations, and/or verbally aggressive clients/customers. Risk factors for violence include exchange of money with customers, few employees on site, and evening or night work. 15 Ibid pg 9

10 Page 9 of 37 Home-work interface Work Content Conflicting demands of work and home, low support at home, dual career problems. Risk Factors Work environment Problems regarding the reliability, availability, suitability and and work equipment maintenance or repair of equipment and facilities. Lack of variety or short work cycles, fragmented or meaningless work, Task design under-use of skills, high uncertainty Work overload or under load, lack of control over pacing, high levels Workload/work pace of time pressure. Shift working, inflexible work schedules, unpredictable hours, long or Work Schedule unsocial hours. Source: Adapted from Tom Cox, Amanda Griffiths & Eusebio Rial-Gonzales, Research on Work Related Stress, European Agency for Safety and Health at Work, May Part Five: Knowing the warning signs of psychological injury 14. It is a fact in life that some people are more resilient than others. No one is immune to stress, and some circumstances are so stressful that the majority of people would be adversely affected. Unsurprisingly the occurrence of stress depends on the interaction of the individual and the circumstances as they perceive them. An individual s reaction to stress will be influenced by a range of factors, including: a. their personality; b. age; c. education level; d. degree of training; e. health status (physical fitness and nutrition); f. social status in the organisation; and g. the pressure they face outside the workplace Individual personality will influence how people respond to negative work experiences and work pressures. Some individuals have vulnerabilities or characteristics that 16 New Zealand Department of Labour, Occupational Health and Safety, Stress and Fatigue: their Impact on health and safety in the workplace, p.24

11 Page 10 of 37 contribute to the stress process (such as negative thinking patterns, the perception of being controlled by their circumstances, poor coping skills or past experience of stressors). In addition, there are staff who already have a psychological condition or develop one during their work life. These psychological conditions may be severe or virtually unrecognised, temporary, permanent or periodic. According to Comcare Commonwealth employees who make workers compensation claims for psychological injury generally take two to four times more unplanned leave than other employees prior to making a claim. Whilst unplanned leave is one of the indicators the table below sets many of the outward signs of the impact of stressors on individuals are noticeable.

12 Page 11 of 37 Work Performance Emotional Behaviour Declining or inconsistent Crying performance Inability to concentrate Angry or aggressive outbursts Not getting things done Erratic Behaviour (inconsistence with usual behaviour) Indecisive Over-reaction to problems Forgetful Sudden mood changes Loss of enthusiasm Irritability/moodiness Failing to take annual leave Feeling depressed or anxious Increased errors/accidents Reduced reaction time Withdrawal Relationship Reluctance to give or offer Criticism of others support Arriving late and leaving early Lack of co-operation Extended lunches Marital or family difficulties Cynicism Conflict with team member/manager Absenteeism Use of grievance procedure Turnover Bullying or harassment claims Reduced participation in work activities & social events Fixation with fair treatment issues Physical/physiological signs Seeking support Tired all the time Employee complains of not coping with the work, feeling stressed, or a lack of management support Sick and run down EAP use Difficulty sleeping Submission of workers compensation claims Headaches Weight loss or gain Substance abuse Dishevelled appearance Increased consumption of caffeine, alcohol, cigarettes and/or sedatives. Source: adopted from Noreen Tehrani, Managing organisation stress: a guide, Chartered Institute of Personnel and Development,

13 Page 12 of 37 Part Six: Steps to prevention of psychological injury (The Primary Response) 16. As discussed above mental stress is a significant issue for employees, employers and the broader economy and should be dealt with at an organisational level as well as at an individual level. According to Safework Australia: 17 Many organisations focus on helping individuals cope better with stress rather than dealing with the source of job stressors (Guthrie et al. 2010; and Noblet & LaMontagne 2006). However, research has shown that helping employees learn stress coping techniques may only have short-term success it is not a long term solution (Ford 2004; and Noblet & LaMontagne 2006). The better option is to reduce the sources of workplace stress at an organisational level. This has been shown to have long-term benefits for the employees and the organisation as a whole. However the most comprehensive stress intervention is best done on three levels (Cox 2011; Ford 2004; Guthrie et al 2010; LaMontagne et al. 2010b; Noblet & LaMontagne 2006; Leka et al. 2003). 17. The report confirms that the: a. primary level is generally considered the most effective intervention and deals with the source of stressors in the workplace; b. secondary intervention provides control at the individual employee level; and c, tertiary intervention aims to provide treatment to employees who have experienced a work-related mental stress injury. 18. The prevention of psychological injury may be considered as a primary response. It is suggested this can be achieved in two main ways. The Australian researchers Cotton and Hart 18 suggest that contextual factors (such as leadership and managerial practices, 17 Safework Australia Publication Incidence of Accepted Workers Compensation Claims for Mental Stress in Australia April Cotton P and Hart P M, Occupational Wellbeing and Performance: a Review of Organisational Health Research, Australian Psychologist, 38(1), 2003, pp ; and Cotton P, Developing an Optimal Organisational Climate: Towards Australia s Safest Workplaces II Conference Paper, March 2004, Canberra

14 Page 13 of 37 climate and culture) strongly influence how employees cope with and manage their operational demands. Unsurprisingly, their research confirms that employees in workgroups with high morale and supportive leaders are much less likely to perceive their workload as excessive, or to submit workers compensation claims. Cotton and Hart have also found that those school leaders that demonstrate supportive leadership characteristics address most of the contextual risk factors identified in Table 2. The features and characteristics are summarised in below: Demands/support Being approachable and responsive when dealing with staff concerns Role Demonstrating an understanding of the issues faced by their staff Being able to be relied on under pressure Supporting staff when things go wrong Providing frequent informal development-oriented feedback Clarifying work expectations, objectives and priorities Control Actively seek staff involvement in decisions Delegating and encouraging staff to take initiative Relationships Providing opportunities and encourage staff to work collaboratively with others Treating people with consideration and respect and encourage team members to do the same Are fair and equitable in their dealings with their staff 19 The research of Cotton indicates that preventative responses should include that work teams have: a. strong morale; b. exhibit collaborative peer working relationships; c. have supportive managers; d. show a high level of behavioural integrity and model organizational values; and e. high quality formal and informal feedback is exchanged Cotton and Hart 20 Cotton P. (2008) Psychological Injury in the Workplace in InPsych available at

15 Page 14 of 37 Part Seven: What can be done to reduce the consequences of workplace stress? (The Secondary Response) 19. Secondary responses aim to reduce the consequences of workplace stress before they escalate to psychological injury. Work demands are the easiest to identify. Work demand risk factors such as pace of work and work variety are more easily recognised compared to more esoteric support risk factors such as respect and management culture. Experienced, competent managers will have an understanding of the work climate interacts with the organisation of the work. They may however consider using the Health and Safety Indicator Executive (UK) Tool as a simple means of receiving candid feedback from staff. That tool is attached at annex A 20. This section of the paper addresses: a. Factors that could contribute to psychological injury and what management can do. b. What are the reasons why managers may fail to deal adequately with staff who experience work-related stress? c. Key questions that may arise for managers who are dealing with staff who may be suffering from work related stress and /or may have unsatisfactory performance and /or exhibiting challenging behaviours.

16 Page 15 of 37 Factors that could contribute to psychological injury and what management can do 21. The following list of the factors that could contribute to psychological injury and what management can do is a direct replication from Comcare publication. 21 Seven categories are identified: 1. Culture 2. Demands of the job 3. Support and the individual 4. Control 5. Relationships 6. Change 7. Role 1. Culture Factors that could contribute to psychological injury a. Lack of communication and consultation between management and staff b. A culture of blame when things go wrong, denial of potential problems c. An expectation that people will regularly work long hours or take work home with them. What management can do? a. Provide opportunities for staff to contribute ideas, especially in planning and organising their own jobs b. Introduce clear business objectives, good communication, and close employee involvement, particularly during periods of change c. Be honest with yourself, set a good example, and listen to and respect others d. Be approachable create an atmosphere where people feel it is OK to talk to you about any problems they are having e. Avoid encouraging people to regularly work long hours. f. Train all staff in how to have difficult conversations and ensure the culture of the school is committed to resolving conflict: 21 Ibid Working well: An organisational approach to preventing psychological injury,

17 Page 16 of 37 i. at the earliest opportunity ii. in the most informal way iii. by the most appropriate people 2. Demands of the job Factors that could contribute to psychological injury a. Too much to do, too little time b. Too little training for the job c. Boring or repetitive work, or too little to do d. The working environment What management can do a. Prioritise tasks, cut out unnecessary work b. Establish clear and realistic deadlines c. Try to give warning of urgent or important jobs d. Make sure individuals are matched to jobs e. Provide training for those who need more f. Consider whether it is possible to redesign jobs to reduce risk (for example, increasing the variety of tasks, or providing individuals or groups with some clearly defined scope to decide how their work should be completed and how problems should be tackled) g. Where redesign is impractical, consider using job rotation for employees working at a fast pace in areas with heavy workloads, or where work is monotonous or repetitive h. Make sure workplace hazards, such as noise, harmful substances and the threat of violence, are properly controlled.

18 Page 17 of Support and the individual Factors that could contribute to psychological injury a. Lack of support from a manager or co-workers b. Not being able to balance the demands of work and life outside work What management can do a. Encourage employees to recognise when they are feeling stressed and provide training in coping strategies b. Support and encourage staff, even when things go wrong c. Encourage a healthy work-life balance d. Consider the scope for more flexible work schedules (e.g. flexible working hours, working from home) e. Take into account that everyone is different, and try to allocate work so that everyone is working in the way that helps them work best f. If available, encourage the use of employee assistance programs g. Ensure that employees are appropriately counselled and supported following a critical or traumatic incident. h. Ensure that all staff in a supervisory role have the capacity to coach staff in managing conflict for themselves and run a desktop mediation to address issues where the difficult conversation between warring staff is unwise. 4. Control Factors that could contribute to psychological injury a. Lack of control over work activities What management can do

19 Page 18 of 37 a. Give more control to staff by enabling them some scope to plan their own work, make decisions about how that work should be completed and how problems should be tackled. 5. Relationships Factors that could contribute to psychological injury a. Poor relationships with others b. Bullying, racial or sexual harassment What management can do a. Provide training in interpersonal skills (How to have difficult conversations) b. Set up effective systems to prevent bullying and harassment (for example, a policy, agreed grievance procedure and proper investigation of complaints) c. Be savvy enough with complaint management processes to know when to engage an external investigator or mediator 6. Change Factors that could contribute to psychological injury a. Uncertainty about what is happening b. Fears about job security What management can do a. Ensure good communication with staff b. Provide effective support for staff throughout change processes.

20 Page 19 of Role Factors that could contribute to psychological injury a. Staff feeling that the job requires them to behave in conflicting ways at the same time b. Confusion about how everyone fits in What management can do a. Talk to people regularly to make sure that everyone is clear about what their job requires them to do b. Make sure that everyone has clearly defined objectives and responsibilities linked to business objectives, and training on how everyone fits in. 22. Annex G sets out examples of reasonable adjustments to address the effects of a worker s mental illness in the workplace What are the reasons why managers may fail to deal adequately with staff who experience work-related stress? 23. Some of the reasons why managers may fail to deal adequately with staff who experience work-related stress include: a. inadequate awareness of the issues; b. reluctance to concede that their management styles may be associated with ill health or stress in their employees; c. different staff may respond differently to the same working environment and management style. This may lead managers to conclude that a problem is the individual's rather than accepting the need to acknowledge and respond to differences in their staff;

21 Page 20 of 37 d. managers may be reluctant to be educated in this area if they do not consider health and safety to be part of their responsibilities; e. managers may be concerned that raising stress with staff may create an issue where none existed; f. managers may be reluctant to 'intrude' into a worker's private life, although stresses arising outside of work can spill-over into the workplace; and g. a reluctance (or inability) to change work routines or schedules or organisational structure. 24. From this list key questions arise for managers including: a. What should I do if an employee complains about being under too much pressure? b. What do I do about performance concerns for staff? c. What if a staff member approaches me as the principal and asks for advice on whether they should lodge a WorkCover claim for psychological injury? d. What do I do where a mental illness has already been disclosed to me or is disclosed to me during a performance discussion? e. What if a staff member engages in totally inappropriate and unwarranted swearing that amounts to misconduct? f. What do I do if I suspect that a member of staff is suffering from mental health issues and is not disclosing them? g. Is there anything I should do differently if the person has been away from work for an extended period (over two weeks)? a. What should I do if an employee complains about being under too much pressure? 25. First, listen to them. If they believe that they are affected by workplace stressors then consider the following: a. Try to identify and address the source(s) b. Involve the employee in decisions

22 Page 21 of 37 c. If necessary, encourage them to seek further help through their doctor, health and safety representative, or employee assistance program (if available) d. If you are not their line manager, ensure that their manager treats the employee with understanding and maintains confidentiality e. If one of your employees is affected by workplace stressors then also seek to find out whether others might also be experiencing similar problems. b. What do I do about performance concerns for staff? As a manager, you may be unsure how to deal with performance concerns for workers, including workers with a suspected or known mental illness. It is reasonable to expect that you have an adequate awareness of mental health issues and how they can impact on the workplace. By way of general knowledge The Beyond Blue 23 website is an excellent resource. That website reveals that: a. more than 3 million people in Australia experience depression, anxiety, or related alcohol and drug related problems each year; and b. each employee with depression will, on average, take 3 to 4 days off a work per month which is equivalent to over 6 million days lost each year It is also essential to appreciate that characteristic behaviours caused by a disability should not be the reason for detrimental treatment towards the employee, including termination of employment. 25 Principals are entitled to apply your standard performance management system to all workers where you have a legitimate concern about their performance. However, as part of that performance management system, you will need to: a. Take into account personal circumstances that may contribute to a worker s performance issue, as you would for all workers b. Consider whether a mental illness may be contributing to the poor performance (Beyond Blue.com.au ABS 2008 National Survey of Mental Health and Wellbeing) 24 (Beyond Blue.com.au quoting Andrews 1999) 25 Dealing with Mental Illness in the Workplace, by Glenda Beecher, Maddocks', first released Oct/2003

23 Page 22 of 37 c. Consider the seriousness of the performance concern (as for more serious matters, such as violence, there may be no option but to take strong disciplinary action regardless of whether there is a reason, such as a mental illness) d. Consider whether the performance concern relates to a key part of the job or if the work could be adjusted to address or avoid a recurrence of the particular concern e. Encourage and enable the worker to discuss the performance concern and whether there are any health issues that may have impacted on their performance. c. What if a staff member approaches me as the principal and asks for advice on whether they should lodge a WorkCover claim for psychological injury? 28. Principals should not provide advice if a staff member asks whether they should lodge a WorkCover claim for psychological injury. The person could be referred to Employee Assistance Service, the union, their GP or a suitable member of staff. As the key decision maker in the school and the person who is responsible for ensuring the safety of staff you do not place yourself in a position where you could easily be criticized for influencing the decision making process of a member of staff. In the spirit of building a supportive culture in the school a principal should always encourage staff dealing with conflict: - at the earliest opportunity; - in the most informal manner; and - by the most appropriate people. 29. It is, however, useful for Principals to be aware of advice that may be provided by lawyers, unions and WorkCover to staff contemplating whether to lodge a claim or commencing legal action: a. If after attempting informal resolution then complain loud, early and in writing (find the relevant workplace polices and follow them as telling the boss at a social function is not sufficient) b. Seek medical treatment early. Because you have to establish that you have suffered an injury you must demonstrate that you are suffering from a clinical medical condition rather than based on emotion. The best indicator or whether or

24 Page 23 of 37 not you are suffering from a clinical medical condition is whether or not you are having treatment for the condition. c. If you are suffering from a medical condition which is likely to be at least for some time it can be very important to lodge a WorkCover claim. d. In some cases where there is no evidence of clinical condition the lodging of the WorkCover claim to highlight a concern such as bullying / inter personal conflict with a view to the matter being properly addressed resolved through methods such as mediation. e. In some cases where there is no evidence of clinical condition the lodging of the WorkCover claim can backfire. There is a possibility that there is change in the focus away from the inappropriate conduct of another person to the ill health of the complainant. f. Potential claimants should fully understand what is reasonable management action taken in a reasonable way before providing the factual account and supporting evidence of the main factors or events they believe caused their injury. g. The information should be lodged within 5 day of lodging the claim and include: Broad heading or events such as o The staff meeting o Performance discussions o Workload Date and time of when the events took place Who was involved What happened / what was said/ how it was said Name and contact details of witnesses who saw what happened Name Ph No Relationship Comments about allegation Delvene Co teacher This person was Delaney present at the staff meeting when the offensive comments were made by Mr. S Documents Minutes of meeting 5Aug14 from Delvene to me post meeting 5

25 Page 24 of 37 Poitier Aug pm h. Documentary evidence that is persuasive includes: Medical health professional notes / letters including psychologists or psychiatrists Statements from colleagues s Staff meeting notes Work incident reports Performance management procedures and ancillary documents Timesheets Information from others undertaking the same tasks Reference to the Award and EBA i. A psychiatrist retained by WorkCover will conduct an interview the claimant to determine whether there are sources of stress other than work. j. Stress claims are more likely to be contested by WorkCover than other claims. l. Because the claims are volatile and there are many perceptions of the same events it is difficult to predict the outcome from the Qld Industrial Relations Committee m. Litigating a stress claim is an option that needs to be carefully assessed as there needs to be a careful analysis of the transaction costs (what net benefit will I receive after costs, Centrelink and other payments are deducted ) n. It may take 6 to 10 months to get to trial if a matter is litigated and in the meantime a whole range of outcomes can occur including the claimant taking another job, the claimant s health deteriorating even further or a separation agreement is negotiated from the employer. o. Before engaging in litigation give careful consideration to what is causing stress in your life and seriously consider whether the work event(s) are the major stressor. 30. Annexes B to F provide excellent background and information to principals managing psychological injuries B. Response to Psychological Injury Claim Checklist

26 Page 25 of 37 C. Injury Management Fact Sheet: Reporting and Investigation of WorkCover Psychological Injury Claims D. Example of the contents of an Employer Response E. Injury Management Fact Sheet: Witness Statement Guidelines F. Injury Management Fact Sheet: Claims for Workers Compensation 31. Annex H is a newspaper article refers to a case where the Queensland Industrial Relations Commission dismissed the school s appeal against a worker s compensation order made in favour of a music teacher who successfully argues he suffered a psychological injury when issues with a fellow teacher were not dealt with adequately. The lessons to be learned from that case include: a. steps should have been taken to sit all the parties down and talk openly frankly about achieving a way forward b. the human resources manager made little attempt to expedite her investigation despite the apparent dire situation the music department was in c. there was no justification for the human resources manager to release her draft investigation report to all three teachers and that conduct was inappropriate management action 32. Annex I is a newspaper article which refers to a decision made on 5 September 2014 in Victoria where a teacher was awarded $770,000 for dealing with feral students. The lessons to be learned from that case include: a. the school had breached its duty to the teacher by not removing him from challenging classes known as low and foundation cases; b. if the workload of low classes had been reduced and if he had been supported in his teaching duties then it was probable that his psychiatric condition would not have deteriorated; The school has since changed its teaching model by ensuring teachers are given classes across all levels so that they do not disproportionately allocate teachers to any one level. Furthermore the school no longer allows teachers to teach at only one level. d. What should I do if a mental illness is disclosed to me during a performance discussion? 33. Where you already know that a worker has mental health issues (or they raise this during the performance process) it may be advisable to cease the performance management

27 Page 26 of 37 process at that stage. This will enable you to focus on the possible impact of their mental illness in a more a supportive and sensitive manner. You could, for example, still make it clear to the worker that: a. You have a performance concern about them b. Their behaviour or performance was unacceptable c. You are aware or suspect they have a mental illness d. You would like to discuss how they see their mental illness impacting on their work and performance e. You are willing to explore whether there are reasonable work adjustments that could be made to accommodate the particular impact of their mental illness without compromising core job responsibilities f. You wish to make it clear that while the behaviour/performance was unacceptable, you are willing to explore whether there are options to prevent it occurring again, rather than it becoming a formal performance management process g. If the performance issues cannot be resolved, or reasonable adjustments cannot be made or do not work, you will need to revisit the issue as a performance concern at that point. e. What if a staff member engages in totally inappropriate and unwarranted swearing that amounts to misconduct? 34. A recent case in Fair Work Australia (FWA) highlighted the issue of swearing in the workplace. 26 FWA concluded that whilst the swearing was totally inappropriate and unwarranted and amounted to misconduct it was not so serious as to warrant dismissal. This case illustrates that swearing can amount to misconduct and perhaps even serious misconduct justifying dismissal 27. The editor of the Employment Law Handbook indicates that it depends on a number of factors such as: 26 Symes v Linfox Armaguard Pty Ltd [2012] FWA See summary provided by Charles Power, Workplace Bulletin Article When does swearing justify dismissal sourced from

28 Page 27 of 37 a. the culture of the workplace (i.e. whether or not the workplace environment is one in which swearing is allowed and accepted) b. the circumstances and context of the swearing (i.e. whether it was said jokingly or in an aggressive manner) c. who or what the swearing was directed at (e.g. swearing at a manager can amount to insubordination and may amount to serious misconduct particularly when combined with a refusal to perform duties). If you think the conduct is serious enough to warrant summary dismissal then carefully follow all policies and ensure the employee has an opportunity to respond to the allegations and consider their response. If a meeting takes place then ensure that they are given the opportunity to have a support person present. For less serious transgressions a first and final letter warning can be provided and their behaviour then monitored. f. What are my responsibilities when a worker has not disclosed their mental illness? 35. A worker may choose not to disclose their mental illness to you, even when it is evident that they are not coping in the workplace. If a worker is having difficulty performing the key requirements of their job, and this might be related to mental illness, it would be prudent for you to: a. Ask if there is any assistance or workplace adjustment that could assist the worker in performing their job b. Offer the choice of seeking confidential support form an Employee Assistance Program or equivalent outside professional advice. 36. In some situations, the fact that the worker has not disclosed their mental illness will limit or even prevent you from providing reasonable adjustments or support. In other situation, it will still be possible to proceed with an adjustment in the workplace to assist the worker regardless of their non-disclosure. a. Respect the confidentiality of your staff b. Tell your staff what you plan to do with any information you collect c. Involve them, as much as possible, in subsequent decisions d. Involve OHS representatives, if you have them, in your plans and decisions

29 Page 28 of 37 e. Establish a series of periodic meetings so as to check that the situation hasn't changed. f. If the worker has not disclosed a mental illness, it is still possible for you to explore ways to adjust their work to try to avoid the performance concern occurring again or to pursue the normal procedures for unsatisfactory performance. g. Provide a timeline to implement the work-related adjustments h. Ensure that you and the worker are both clear about the requirements of the job and standards for performance i. Where possible identify the disability and find out the general characteristics of disability by referring to medical experts. Under no circumstances should you diagnose yourself or idly speculate with colleagues what you think the diagnosis is. g. Is there anything I should do differently if the person has been away from work for an extended period (over two weeks)? 37. Firstly welcome the staff member back, confirm their contribution was missed and provide an update about developments that have occurred in their absence. Secondly, as a separate exercise, explore with them their reasons for non-attendance. If you already know that the period off work was due to stress, review with the staff member the factors they believe are responsible for the stress. This may change the focus and content of the conversation but does not remove the necessity to have the conversation with the staff member. Part Eight: Treatment of the condition and restoration of full health (The Tertiary Response) 38. The tertiary intervention aims to provide treatment to employees who have experienced a work-related mental stress injury. Tertiary interventions are targeted at workers who have become affected by a developing condition and focus on the treatment of the condition and on restoring a worker to full health and functioning. 28 These strategies should still be focused on early intervention and can take the form of occupational 28 Comcare Psychological Injury available at

30 Page 29 of 37 rehabilitation services. 29 Such responses should be concentrated on returning the worker as soon as possible, which has been shown to maximise the chances of a successful return to work 30. The following discussion points may assist principals in managing issues that arise when the staff member has had an extended sick leave or already suffered the workrelated mental stress injury. a. What can I say to other work colleagues about a worker with mental illness? b. What is my role if a worker s mental illness impacts on other work colleagues? c. What if a staff member discloses that they have mental health issues and cannot meet the inherent requirements of their job? d. What are reasonable adjustments? e. What if a staff member is undergoing unsatisfactory performance processes and they are undergoing rehabilitation at the same time? f. When can take disciplinary action that may lead to termination? a. What can I say to other work colleagues about a worker with mental illness? It is important not to breach a worker s privacy by telling colleagues about their mental illness unless the worker has agreed that you can do so. Even when permission has been given, the purpose for disclosing a worker s mental illness to colleagues should be carefully considered. In some situations, it is possible to avoid disclosing a worker s mental illness by only mentioning details relevant to the workplace. For example: Jesse will be on sick leave for six weeks. Brett has been asked to change his work duties for a specific period to focus on the following tasks which he has agreed to do. 29 Cotton, P (2008). Psychological Injury in the Workplace in InPsych available at 30 Elshaug, C, Knott, V, Mellington, T (2004) Psychological Injury in the Workplace Prevention and Best-Practice Intervention in Journal of Occupational Health and Safety 20:6. 31 This extract is taken directly from the publication Disclosure of a Mental Illness in the Workplace published by the Social Firm of Australia Pty Ltd. Social Firms Australia Ltd (SoFA), Roles, Rights and Responsibilities, disclosure of a Mental Illness in the Workplace: A guide for employers 2010 pp10-11,

31 Page 30 of In other situations, the nature of the workplace adjustment may inadvertently lead to disclosure. For example, moving a worker s workstation or allowing flexible work arrangements may result in colleagues questioning, speculating or gossiping about the reasons for the change. You should ensure that the worker has thought about what their colleagues may infer from any adjustments, and discuss what information could be presented to colleagues so that potential issues do not arise. 41. If the worker agrees to disclose their mental illness to work colleagues, a manager can explain the reason for the adjustments in a positive and supportive manner. Helping colleagues learn more about mental illness and its impact can prevent negative reactions or assumptions and result in a more supportive work environment. 42. Discussion between yourself and the worker with mental illness is essential in determining the parameters for disclosing a worker s mental health status to their colleagues. If the worker does not agree to let you disclose their mental illness, you will need to discuss what adjustments will be possible without such disclosure or making staff aware (or likely to assume) that the worker has mental illness. b. What is my role if a worker s mental illness impacts on other work colleagues? In some situations the impact of a worker s mental illness in the workplace may be stressful for, or result in concerns by, work colleagues. Where a worker with mental illness has significant periods of absence from work or is not performing at their normal work level colleagues may become concerned, angry or resentful about the impact on their workload and the workplace. In addition, where a worker with mental illness behaves in an unusual or disturbing way, colleagues may become stressed, concerned or unsure about what to do. While respecting the privacy of the worker with mental illness, you should: 32 This extract is taken directly from the publication Disclosure of a Mental Illness in the Workplace published by the Social Firm of Australia Pty Ltd. Social Firms Australia Ltd (SoFA), Roles, Rights and Responsibilities, disclosure of a Mental Illness in the Workplace: A guide for employers 2010 pp10-11