There are close ties between mental health and performance. Two lawyers discuss why you might need to dig a bit deeper if you have a ‘problem’ employee.

Enough is enough. You’ve been performance managing an employee for more than two years and there has been little sign of improvement. He has taken several lengthy leaves of absence and, despite only months ago being issued with a final warning, his performance has not improved.  So you decide that the time has come. He needs to go! 

Sound fair enough? Suncorp Bank felt the same when it terminated Michael Burke’s employment in 2014. However, Burke claimed that his dismissal had been unfair, as Suncorp had not taken his depression into account when making its decision. The Fair Work Commission agreed with Burke and awarded him eight weeks’ salary as compensation, saying that Suncorp had failed to consider Burke’s “reasonably obvious” health issues.

In Burke’s case, he had not made his employers aware of the link between his mental health and performance until his final termination meeting. He had been absent from work for approximately seven out of the 18 months prior to his dismissal and had sent emails to Suncorp’s return-to-work team declaring that he had depression and that his symptoms included a lack of motivation, chronic fatigue, being heavily sedated from medication and having a disheveled appearance. 

This begs the question: Is it an employer’s responsibility to recognise the connection between mental health and performance, and then respond accordingly? Or, should an employer sit on its hands until an employee formally submits that they are suffering from mental health issues and asks for help?

The role of an employer

Fortunately for employers (and HR managers), it is not their job to medically assess their employees’ mental health. However, an employer is responsible for providing and maintaining a healthy and safe workplace for everyone in it, including workers with mental health issues who do not formally disclose the fact. 

Employers are required to identify possible workplace practices, actions or incidents that might cause, or contribute to, the mental illness of workers and to take actions to eliminate or minimise these risks. The Australian Human Rights Commission has recommended implementing the following key measures:

• developing a greater understanding of mental health issues through education and training;
• offering flexible working arrangements;
• developing mentoring and peer support systems;
• providing access to counselling services and/or specialist support groups; and
• having effective policies and procedures, which include managing mental illness issues in the workplace; preventing and resolving harassment and bullying; and discuss how reasonable adjustments to an individual’s working arrangements can be made so that relevant requests are dealt with promptly, fairly and appropriately.

Avoiding unlawful discrimination

An employer must also avoid discriminating against an employee on the basis of a disability caused by mental health.

Teresa Penglase was an account manager who had been absent from work for a week. She had provided medical certificates stating that she would be unfit to work for at least another week. Penglase’s employer, Allied Express, directed her to see a company doctor who reported that she was suffering from anxiety and a stress disorder, but was fit to return to her normal duties.

Penglase’s manager reviewed the report and gave her three options: perform a telephonist role with a reduced salary, take on a sales executive position with increased workload or resign. 

Penglase complained to her employer that the ultimatum had made her feel bullied. A month later, her position was made redundant. Penglase brought legal proceedings claiming discrimination by adversely altering her employment due to mental health issues. She was awarded damages.

Once an employee with a mental health issue has been identified, employers should consider following this process:

1. Identify the inherent requirements of the employee’s job;
2. Assess the employee’s skills and abilities in light of their medical condition, taking into account any medical advice or recommendations provided by a doctor;
3. Identify reasonable adjustments with the employee that can be made to maximise their job efficiency; and
4. Check that the employee can meet the inherent requirements of the job when reasonable adjustments have been identified.

The following are examples of common reasonable adjustments that may assist employees to balance their mental health and performance:

• offering flexible working arrangements, such as job rotations or variable start and finish times;
• changing some aspects of the employee’s job or work tasks, such as exchanging a single demanding project for a job consisting of a number of smaller tasks; or
• changing the employee’s workplace or work area, such as moving the employee to a quieter work area.

Mental wellness: The benefits

There are many benefits to maintaining a safe and healthy workplace in terms of mental health. The costs associated with high staff turnover and employee absences are inevitably reduced by encouraging loyalty, lowering stress levels and improving morale. This is in addition to savings from avoiding litigation and fines for law breaches or discrimination claims.

When all is said and done, managing employee mental health and performance should not be viewed as being a burden on employers, but as an opportunity to improve their workplaces for the benefit of everyone within them and to make them as productive as possible.

AHRI ASSIST directs members to Mental Health First Aid, which is a website that provides guidelines and fact sheets on mental health and how to deal with it in the workplace. To learn more, click here.

AHRI professional members are automatically protected by AHRI ProCover insurance for activities undertaken in the course of doing their job. For more information, click here.