Legal experts examine the extent to which resilience could be considered the responsibility of employers.

Employers have a duty to maintain a safe workplace, and this includes taking steps to protect workers against psychosocial hazards such as stress and bullying. But how much responsibility do employers have for employees’ resilience and emotional wellbeing, and how much is up to the individual?

Why does resilience matter?

Resilience is the ability to cope with adversity and bounce back from stressful situations. It’s a hot topic these days (HRM did a big feature on it) and we hear about its importance in places such as the schoolyard, social media, and increasingly, the workplace.

Many employers are recognising that a resilient workforce provides benefits for business, because psychologically robust workers are likely to have greater levels of engagement and productivity, and lower rates of absenteeism.

Taking steps to build resilience may also help employers discharge their statutory work health safety obligations, including a duty to minimise risks to workers’ psychological health.

What can employers do to develop a resilient workforce?

When assessing a workplace for work health safety risks, it’s often easy to focus on tangible hazards like what may cause a slip and trip, or other physical injuries. However, it may be less obvious hazards such as interpersonal conflict, up to and including bullying, internal restructuring or changing duties which may be posing the greatest risk to your workforce.

Practical strategies to develop and improve resilience include:

• encouraging workers to speak up and seek help early if they are experiencing stress;
• making it safe and easy to report bullying by creating good policies and communicating them well;
• implementing an Employee Assistance Program or seeking other wellbeing assistance programs;
• encouraging a culture of flexibility and employee buy-in; and
• conducting resilience workshops for employees that teach mechanisms for recognising and dealing with stress.

What about individual responsibility?

While it is important for employers to be proactive about their obligations to minimise risks to workers’ psychological health, that doesn’t mean walking on eggshells, or catering to unduly sensitive personalities.

In fact, the Fair Work Commission has indicated when assessing bullying claims that it expects a certain level of resilience from employees. In Harris v Workpac, Commissioner Cloghan said, “[T]he Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct”.

The Commission also said that while employers are required to pursue inappropriate behaviour, they should also be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is guilty of bullying.

The Victorian Supreme Court also recently rejected the claims of an employee claiming close to $2 million in damages from his employer after his supervisor allegedly repeatedly abused him, including by regularly “lifting his bum and farting” on him or at him.  The Court found that the supervisor’s flatulence was “an offence that has its origins in cultural difference – rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario”.

Main takeaways for employers

Developing and improving workforce resilience is good for employees, and good for a business’s bottom line.

That’s why it’s a smart idea to take steps to safeguard the emotional wellbeing of your workforce by:

• making the company’s expectations and standards about behaviour and conduct clear to employees, particularly in relation to communication and treating others with respect;
• educate employees about the different personality types they may encounter at work, and strategies for dealing with interpersonal conflict.

It’s also important to consider resilience when looking at:

• claims of workplace stress and bullying; and
• work health safety assessments and training.

Individuals do, in some circumstances, bear some level of responsibility for their own sensitivity and resilience. Tribunals and courts will not necessarily assume that an employee’s embarrassment, humiliation or hurt will have been caused by bullying.

Aaron Goonrey is a Partner and Sara Wescott is a Lawyer in Lander & Rogers’ Workplace Relations & Safety practice. Aaron can be contacted at agoonrey@landers.com.au