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LifeWorks is a not for profit organisation that provides family, couple and individual
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Welcome to the long awaited return of the LifeWorks in the Workplace Newsletter, in this Spring 2014 editon we cover:

MENTAL HEALTH WEEK: Rebecca Henshall discusses why supporting people with mental health issues is so important in the workplace.

FAIR WORK RULINGS: Leah Walls explores a recent ruling from Fair Work that brings into light the evidence required to meet the ‘reasonable management action’ definition.

EMPLOYMENT CONTRACTS:  Rob Wallace, Business Services consultant writes about the recent High Court ruling that ends a decade of debate over the implied term of mutual trust and confidence.

EAP: Are they OK? New EAP manager Jamie Anderson focuses on the gap between those experiencing the impacts of mental health conditions and those receiving support through workplace Employee Assistance Programs.

THE TEAM: Janet Jukes, new LifeWorks CEO.


Picture of Rebecca Henshall

By Rebecca Henshall - Senior Consultant

   

How to deal with mental health in the workplace

This week is Mental Health week, so it's important to take the time to revist the place of Mental Health within the workplace and broader community. Possessing good mental health enables a person to use their skills and talents to their fullest potential. Conversely, suffering minor or major mental health problems creates tension in many areas of a person’s life such as relationships with others, ability to perform at work and study, and may also have physiological impacts.

We know that one in five adults, or 3.2 million people, in Australia will experience a mental health difficulty such as depression, anxiety or a substance misuse disorder in any year. [1] Despite these statistics, a recent survey of senior managers believed that none of their staff will experience a mental health problem at work [2].

Most people can recover from or manage their mental health difficulty and want to work. Employment can be a helpful part of the recovery process, however people with mental illness experience barriers to employment that are not to do with their ability, such as stigma, attitudes, and a rigid workplace.

For those employed, untreated mental illness can diminish engagement and activity in the workplace, and on average, every full-time employee with untreated depression costs an organisation $9,665 per year. [3] While for those unemployed, mental illness can act as an obstacle to gaining or holding a job. Job seekers with a self-reported mental illness have an unemployment rate of half that of the general population. [4]

Given that mental disorders account for 13.3% of Australia’s total burden of disease and injury and are estimated to cost the Australian economy $20 billion annually in lost productivity and labour participation, it makes sense to develop strategies to address this in the workplace. [5]

Key reasons to support people with mental illness in the workplace include:

  • Ensuring people with mental health conditions are able to keep their job will boost productivity and support social inclusion. [6]
  • Removing obstacles to keeping employees at work, and minimising time off work, is associated with better long term mental health and wellbeing outcomes. [7]
  • Early intervention—specifically, early identification and facilitating access to quality mental health care—is associated with a considerable return on investment. [8]
  • Educational and vocational outcomes for people with mental illness can be improved through the introduction of models of supported employment. [9]
  • Work is generally good for mental health and wellbeing. [10]

Australians need flexible and supportive workplaces, where employment discrimination on the basis of mental health is eliminated and employers and employees are provided with support so that the potential of the individual and the business are maximised.  [11]

LifeWorks has designed a number of training programs to support management and employees in managing psychological health at work. These programs are focussed on assisting managers in their role to support staff whilst maintaining business requirements and legal obligations; and to assist colleagues in managing sensitive mental health issues within the team. Contact us on 1300 543 396 or email Rebecca at rhenshall@lifeworks.com.au

References:

[1]Australian Bureau of Statistics 2007, National Survey of Mental Health and Wellbeing : Summary of findings, cat. no. 4326.0, ABS, Canberra.

[2]Workers with Mental Illness: a practical guide for managers 2010, Australian Human Rights Commission

[3]Hilton, M 2004, ‘Assessing the financial return on investment of good management strategies and the WORC Project’, research paper, University of Queensland, p. 4, viewed 4 April 2013, <www.qcmhr.uq.edu.au>.

[4]Australian Bureau of Statistics. Australian Health Survey: Users’ Guide, 2011‑13 (Cat. no. 4363.0.55.001). Canberra: Australian Bureau of Statistics, 2012.

[5]Australian Institute of Health and Welfare 2007, The burden of disease and injury in Australia, 2003, PHE 82, AIHW, Canberra, p. 61; Australian Bureau of Statistics 2009, Australian Social Trends: March 2009, cat. no. 4102.0, ABS, Canberra, p. 13.8

[6]Organisation for Economic Co-operation and Development 2012, Sick on the Job? Myths and realities about mental health and work, OECD Publishing, Geneva, pp. 36, 40.22

[7]Rueda, S, Chambers, L, Wilson, M, Mustard, C, Rourke, SB, Bayoumi, A, Raboud, J, & Lavis, J 2012, ‘Association of returning to work with better health in working age adults: A systematic review’, American Journal of Public Health, vol. 102, no. 3, pp. 541–556.23

[8]Whiteford, HA, Sheridan, J, Cleary, CM, & Hilton, MF 2005, ‘The work outcomes research cost-benefit (WORC) project: The return on investment for facilitating help seeking behaviour’, Australian and New Zealand Journal of Psychiatry, vol. 39 (Suppl.2), no. A37.24

[9]Waghorn G, Lloyd C. The employment of people with mental illness. Australian eJournal for the Advancement of Mental Health 2005;4(2):1‑43.

[10]Royal Australasian College of Physicians, Australasian Faculty of Occupational and Environmental Medicine 2011, Realising the Health Benefits of Work: A Position Statement, RACP, Sydney, available at: <www.racp.edu.au>.

[11]National Mental Health Commission 2012, A contributing life: the 2012 National Report Card on Mental Health and Suicide Prevention, Sydney, NMHC, p. 106

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Picuture of Leah Walls

By Leah Walls - Senior Consultant

   

Meeting the ‘reasonable management action’ definition

The Fair Work Commission (FWC) last month ruled that an employee was unfairly dismissed in a case where the Manager had proposed variation to an employment contract which included:

  • an on-call roster that would require an employee to be the designated out-of-hours contact for 13 weeks a year, for which they would be paid.
  • additional hours, making it clear that employees could be required to work 364 hours on top of their ordinary hours for no additional pay.

The Manager alleged that the employee was "aggressive and confrontational” during the meetings to discuss this issue, which the employee denied. As a result, the manager decided there was no other option but termination, saying the employment relationship had “irretrievably broken down and was not recoverable”.

The company argued there was a valid reason for the dismissal based on its allegations that the man had refused to follow a lawful direction to undertake on-call duties and had behaved in an aggressive manner. However, the FWC found that the employee could not be compelled to vary his contract and the company’s proposal amounted to significant changes to existing terms and conditions. The FWC further found that the direction to agree to these terms was not a lawful or even reasonable direction.

The Commissioner accepted that the meetings had been difficult and the employee had been "upset and angry”, but did not accept that he was aggressive or that his behaviour provided a valid reason for termination. That the employee strongly resisted a change to his terms and conditions was not found to be evidence of a breakdown in the employment relationship.

This case and the ruling is a reminder to employers to be mindful of what process and evidence is required to meet the ‘reasonable management action’ definition.

So what is the definition of reasonable management action? The right to take reasonable management action in section 789FD(2) of the Fair Work Act is premised on three factors:

  • The behaviour must be management action;
  • It must be reasonable for the management action to have been taken; and
  • The management action must be carried out in a reasonable manner. 

Similarly the FWC in a recent ruling criticised the Department of Defence for its dismissal of an employee for excessive personal internet browsing, and the use of an anonymous search engine. The dismissal took place after a workplace investigation which the commission deemed to be unfair and unreasonable.

The key concern here was that the Department failed to speak to the employee’s manager or work colleagues about his internet usage, and whether or not it was having an impact on his work. The Commissioner made the point that it was fairly evident that co-workers and the employee’s direct manager would have a strong idea of whether he was spending the majority of his time browsing the internet for non work-related reasons

The ruling underscored the need for employers to ensure that their processes provide procedural fairness and natural justice and that findings are based on all available evidence. 

LifeWorks Taking Disciplinary Action training provides necessary and relevant information for employers. The LifeWorks Business Services team are also skilled in carrying out performance management training, management coaching, workplace investigations and mediation. Contact Senior Consultant Leah Walls on 1300 543 396 or email lwalls@lifeworks.com.au.

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Rob Wallace

By Rob Wallace - Consultant

   

Debating the 'implied term of mutual trust and confidence' in employment contracts

After 20+ years in industrial relations combined with human resource management and accredited training, my aim is to impart my knowledge and expertise to support employers to achieve the best for their organisation and their employees. On this, I recently noted the High Court decision in Commonwealth Bank of Australia v Barker [2014] HCA 32 which reverses the recent acceptance in Australian law of an 'implied term of mutual trust and confidence' in employment contracts.

The decision has now ended over a decade of legal debate, with the conclusion that the implied term of mutual trust and confidence is not a feature of Australian law. 

The implied term of trust and confidence was originally an invention of English law. The term is automatically implied into English contracts of employment (unless inconsistent with an express term), and provides that the parties to the employment contract must not engage, without reasonable cause, in conduct likely to destroy or seriously damage the relationship of trust and confidence between the parties.

Australian common law does support the implication of implied terms into employment contracts. However, an implied term will only be implied into a contract if, among other things, the presence of the term is 'necessary' to give business efficacy to the contract. The High Court found that a term of mutual trust and confidence is not 'necessary' to give business efficacy to an employment contract. Consequently, the High Court determined that such a term should not be implied into employment contracts by law.

Despite the lack of an implied term of trust and confidence, actions which 'destroy trust and confidence' are likely to fall foul of existing statutes and legal doctrines. These include principles relating to adverse action, discrimination, and the duty of co-operation. Employees also have an obligation of fidelity to employers. Additionally, the High Court has expressly opted not to decide upon the question of whether it is necessary to imply a term of 'good faith' into employment contracts, leaving that particular debate open to further argument.

Importantly for employers, it is no longer possible to rely on the shape-shifting implied term of ‘mutual trust and confidence’ to argue that an employee has breached their contract, or in turn to justify a dismissal or other action. If an employer wants an employee to be bound by a particular term or policy, it must be included or incorporated by an express term in the applicable contract of employment.

At LifeWorks, we can provide training to back up and enforce a range of policies. For more information please contact Rob Wallace on 1300 543 396 or email rwallace@lifeworks.com.au.

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Pic of Jamie Anderson By Jamie Anderson - EAP Manager and Senior Consultant

   

Are they OK? Closing the gap between EAP services and employees

At any one time within the Australian workforce, approximately 20 per cent of employees are likely to be experiencing a mental health condition. That means that in most workplaces, there will be at least one person who is personally dealing with the impact of depression or anxiety, or otherwise working while taking on their own inner personal challenges. That’s 1 in 5. Yet despite this known prevalence, there’s still a big gap between the proportion of employees who access Employee Assistance Programs and those who could potentially use the support.

The impact of the gap

While mental illness need not be incapacitating in the workforce, the unfortunate facts are that unsupported employees suffering from mental health conditions very often experience not just the primary difficulties associated with their conditions, but also secondary issues, some of which include:

  • fear of their condition worsening and the unknown;
  • concerns about burdening others and being a liability;
  • difficulties with concentration;
  • impacts of absenteeism;
  • managing conflicts arising between work and home life; or
  • the impacts of premature exhaustion and burnout.

Secondary factors can contribute to a vicious circle exacerbating the mental health condition, increasing the potential that incidents from simple workplace accidents or clerical errors through to serious critical incidents impacting on the employment, health and wellbeing of the employee, their workmates and their family, might occur.

And of course the impact of mental health conditions is more widely felt than just the primary person affected – it doesn’t have to be your employee in your workplace directly experiencing a mental health condition for it to affect your employees. Partners and family members of those experiencing anxiety, depression and other mental health issues often face challenges themselves, requiring support, strategies and skill development to bolster their own ability to cope and respond to the challenges they deal with daily.  

Why does a gap exist?

As mental health professionals and HR Managers well know, the fact that an employer has an Employee Assistance Program (EAP) doesn’t guarantee employees will actually use it. There are a variety of reasons why employees fail to access EAP services. Such reasons include:

  • a lack of awareness due to interminent internal promotion of the service;
  • concerns about confidentiality;
  • stigmitisation and internalised stigmitisation;
  • fear around management attitudes; and
  • fear around possible ramifications, cost or burden of using an EAP service.

Closing the Gap

EAP programs are there to help employees when they actually need support. When an access gap widens into a gulf and employees needing support go begging, the opportunity to proactively address issues before they cause adverse consequences to the individual, their colleagues, their family, and the organisation and its culture as a whole is lost. The costs of losing good employees, not to mention the costs of absenteeism, presenteeism, conflict and even critical incidents that could have been avoided can run extremely high, and as such, an ounce of prevention is usually much better than a pound of cure. A good Employee Assistance Program is one that is proactive in addressing mental health, helping instil skills, confidence, understanding and trust so that when the time comes, support is not only available but the opportunity to access it is not missed.

The way employers, employees and organisations can close the gap include:

  • active promotion of EAP arrangements regularly, saliently and visibly;
  • clear communications on what the EAP is, how to access it and how confidentiality will be maintained;
  • working actively within your organisation to reduce stigmas around mental health – attitudes affect behaviour and access!;
  • ensuring your managers communicate positive attitudes to accessing EAP services and are supportive in practice; 
  • making sure employees understand that there will be no negative repercussions for having accessed EAP services; and
  • invite your EAP provider to talk to your staff – familiarity encourages a proactive approach.

LifeWorks provides Employee Assistance Programs to a range of corporate, governement and community base oprganisations. EAP services also include critical incident response. For more information please contact Jamie Anderson on 1300 781 500 or email janderson@lifeworks.com.au.

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Pic of Janet JukesJanet Jukes - LifeWorks CEO

   

Janet Jukes joins LifeWorks as CEO

In September, Janet Jukes took over from longstanding LifeWorks CEO Kaye Swanton. Kaye's fourteen year tenure at LifeWorks, her dedication and commitment was duly acknowledge and celebrated. Janet is extremely excited to take up the role of CEO and to see the continued growth of LifeWorks in the Workplace. She is particularly focused on building our eLearning platforms and EAP services. To learn more about Janet visit the about us page.

We also welcome Jamie Anderson, our new dedicated EAP Manager. To learn more about Jamie, visit the  about us page.


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