Wednesday, 28 November 2018

Deploying the “stress” buzzword doesn’t always equal success for workers

We are increasingly hearing from our clients on the prevalence of the use of the word stress in Australian workplaces. Sometimes, this will be a legitimate response to an increase in work demands during a particularly busy period; other times it arises due to unreasonable management action.

However, seemingly just as often, the word is defensively deployed by workers who are being subjected to reasonable management action, potentially paired with the bullying buzzword and/or in the context of a workers’ compensation claim.

As many workplaces are grappling with how to manage mental health in the workplace, the stress buzzword can often be met by employers with fear and a sense of paralysis.

However, it is important to recognise that everyone experiences stress, and the use of this term does not in and of itself amount to a disclosure by a worker of a mental illness (ie a disability which constitutes a protected attribute). It also does not mean that the worker is immune from their employer implementing reasonable management action against them. Further, the mere fact that an employee has indicated they are stressed does not mean any management action (up to and including dismissal) will result in a successful general protections claim.

In a recent case example, a worker who claimed he was subjected to various types of adverse action (including dismissal) after he took personal leave due to ‘stress and anxiety’ was unsuccessful in his adverse action claim against his former employer. The Court recognised that the employer took reasonable management action against the employee which was unrelated to his previous exercise of various workplace rights – which included his assertion that he was stressed as a result of work pressures.

It is also important to emphasise that in many jurisdictions, including Victoria, workers will not be entitled to workers’ compensation in relation to alleged psychological injuries if the injury arose in circumstances of reasonable management action taken by an employer on reasonable grounds.

Take home messages

Employers should not ignore claims of stress. If a worker claims they are stressed, this should be considered and addressed as appropriate in the circumstances.

However in parallel, to reduce the likelihood of workplace stress arising (or, at the very least, to reduce the risk of claims related to stress succeeding):

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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