Business Franchise Australia and New Zealand 71a worker’s mental health status is not
disclosed to anyone without the affected
employees’ consent. The only exceptions
may be:
a. use of the information is necessary to
prevent or lessen a serious and imminent
threat to the life or health of the
individual concerned or another person,
or
b. use of the information is required or
authorised by law.
You are obliged to eliminate, isolate or
lessen health and safety risks, while taking
care to ensure the privacy of employees is
upheld. Under the Fair Work Act 2009, it is
essential to ensure that unfavourable action
is not taken against a worker because of their
mental illness. An adverse action can include
dismissal, injuring the employee, altering the
position of the employee to the employees’
disadvantage, refusing to employ a prospective
employee or discriminating against an
employee with mental illness.
While employers have several legal
obligations, they do have the right to ask
certain questions about an employee or
potential employee’s mental health status, if
obtaining more information about a condition
is legitimate, necessary and desirable. This
additional information may be:- to determine whether the person can
perform the inherent requirements of the
job; - to identify if any reasonable adjustments
may be needed, either in the selection
and recruitment process or in the work
environment; - to establish facts for entitlements such
as sick leave, superannuation, workers’
compensation and other insurance; - If you do ask your employee for
information, you must maintain
confidentiality and protect his or her right
to privacy. This means protecting the
information against improper access and
disclosure.
In turn, all employees (including those with
mental illness) are legally obliged to: - take reasonable care for their own health
and safety - take reasonable care that their acts and
omissions do not adversely affect the health
or safety of others - cooperate with any reasonable instructions
to ensure workplace health and safety.
clarification
The law defines discrimination to include
both direct and indirect discrimination. ItBusiness Franchise Australia and New Zealand 71MANAGING
MENTAL
HEALTH
AT WorK
YOuR LEGAL RESPONSIBILITIES
is important to note that a failure to make
reasonable adjustments for a worker with
disability, including a worker with mental
illness, may constitute direct or indirect
discrimination.
DIRECT DISCRIMINATION occurs in
employment where:
a worker is treated less favourably by an
employer than someone without disability.
For example, refusing to employ or dismissing
someone because they have a mental illness.
or
not allowing someone with depression to
work part-time where this arrangement has
been sought as an adjustment for the worker’s
mental illness, may be direct discrimination.
INDIRECT DISCRIMINATION occurs in
employment where:
an employer sets a requirement or condition
that applies generally, but an employee cannot
comply with it because of their disability or
they are disadvantaged. For example, it may
be indirect discrimination to require a worker
with mental illness to start work at 7am, when
the effect of their medication means they are
not alert in the early morning.
or
It may be indirect discrimination to expect
that employees must work an 8 hour shift, but
not allow a worker with mental illness to take
additional breaks where required, to be able to
complete their shift.
Reasonable adjustments are changes which
can be made to a job, to enable a worker to
perform their duties more effectively in the
workplace. They should be in response to the
particular needs or issues of a worker and can
include:- offering flexible working arrangements (e.g.
job rotation, variable start and finish times); - changing some aspects of the job or
work tasks (e.g. breaking down a large,
demanding project into a number of smaller
tasks); - changing the workplace or work area (e.g.
moving a worker to a quieter work area); - purchasing or modifying equipment.
An adjustment will be a ‘reasonable
adjustment’ unless it would cause an employer
an ‘unjustifiable hardship’ to make the
adjustment.
HARASSMENT is defined as an action taken
in relation to a person’s disability that is likely
to humiliate, offend, intimidate or distress
the person. The behaviour does not have to be
repeated or ongoing to be harassment.
INHERENT REQUIREMENTS of a job
are those requirements, tasks or skills that are
essential to the position.
It is not unlawful discrimination to terminate
a worker’s employment where they cannot
perform the inherent requirements of the job
after reasonable adjustments have been made.
However the employer may still have legal
obligations under the contract of employment,
award or agreement or other laws.
In consultation with experts and clients,
myosh have developed the Wellbeing platform
to Manage Workplace Mental Health.
The cloud based solution provides managers
and employees with resources and strategies
to:- Reduce Risk
- Improve Productivity
- Promote a positive working environment
- Raise awareness and reduce stigma
Join a webinar to learn more about
Mental Health Management at Work
and the Wellbeing Platform.
http://myosh.com/wellbeing/
Janine Nicholson is a free-lance writer
who researches and reports on topics
relating to Workplace Health, Safety and
Environmental issues. A BSc Honours
Degree in Life Sciences formed the
foundation for a 27 year career spanning
Analytical Laboratories, Hazardous Waste
Management, Industrial Health and Safety,
Environmental Consulting and Auditing.
References
Australian Human Rights Commission
https://www.humanrights.gov.au/publications/2010-
workers-mental-illness-practical-guide-managers/
appendix-knowing-law“it is important to remember that people
affected by mental illness have the same rights
and responsibilities, as other employees.”janine Nicholson