EmploymentLaw

Dropping the Ball on Mental Health Issues at Work

By 1 September, 2022 No Comments

Hawthorn Bungle?

A former employee of the Hawthorn Football Club has commenced legal action alleging unlawful discrimination, as well as misleading and deceptive conduct, for how she was treated at work whilst suffering from mental illness.  This is in contrast to the club’s strong association and support for organisations such as Beyond Blue.  Hawthorn’s founding President Jeff Kennett is responsible for founding Beyond Blue, one of Australia’s most prominent mental health and wellbeing support organisations.

Sophia Salmon-Abbott worked as an account manager for the club in 2021. According to Ms Salmon-Abbott’s statement of claim, she discussed her mental health issues with her bosses not long after she commenced employment.  Whilst they seemed supportive of her, all this changed when she experienced a series of panic attacks at work.  She claims that as a result of the panic attacks, she was isolated at work, despite having told her bosses that being excluded was a trigger for her.  A further severe mental health episode resulted in Ms Salmon-Abbott being hospitalised for a month.

After her hospitalisation, Ms Salmon-Abbott was advised by her psychologist to return to work on a gradual basis. Hawthorn did not consider this to be an option and informed her she could only return to work on a part-time basis as a receptionist. A key piece of evidence referred to by Ms Salmon-Abbot is an email sent by a Hawthorn executive member to other staff members, which Ms Salmon-Abbot says made it clear that she would not be welcomed back as an account manager until she could work full time.  This email was not sent to Ms Salmon-Abbott herself, and she says that she was misled into thinking that she could gradually return to her previous role.

Ms Salmon-Abbott claimed that the club had engaged in misleading and deceptive conduct by having her believe that she could gradually return to work, and that they breached Victoria’s Equal Opportunity Act by unlawfully discriminating against her.

The club has rejected Ms Salmon-Abbott’s claims and say that it is prepared to defend any proceedings.

Relevant Law

Issues of unlawful discrimination are addressed in various legislation in Australia.  State and federal equal opportunity legislation aims to protect individuals against discrimination based on protected personal characteristics including that of impairment or disability.  An impairment could be physical, emotional or intellectual.  Employers must ensure that they provide a working environment that does not discriminate against a person with an impairment or a disability and must take all reasonable steps to prevent discrimination from happening.

Employers must also meet their legal obligations under occupational safety and health legislation which imposes a duty to, as far as practicable, provide a safe workplace in which employees are not exposed to hazards.  Although work-related mental illness is not specifically mentioned, a failure to provide an employee with safe work systems, information, instructions, training or supervision could result in a breach of safety and health legislation.

The Fair Work Act 2009 also prohibits employers from discriminating against employees on the basis of their mental health.  This is called adverse action and includes action such as altering the position of an employee to the employee’s prejudice and injuring the employee in his or her employment.  For example, if an employee is isolated or excluded by colleagues or managers, as is alleged by Ms Salmon-Abbott, this could be considered adverse action.

The Privacy Act 1988 also requires that employers handle the private information, such as medical diagnoses of employees appropriately.  Personal information must be kept private and confidential.

Prevention is better than cure

Being proactive about preventing and addressing issues of discrimination at work can have benefits that go beyond a lower staff turnover and higher staff morale and productivity.  Defending a claim of discrimination can be costly and time consuming.  How can your workplace better protect itself and its employees against discrimination?

  1. Training. All staff members, whether directors or employees should participate in regular training designed to educate them on their rights and obligations in the workplace, including the obligation not to unlawfully discriminate against other workers.
  2. Policies. You should ensure that appropriate policies are in place that address issues of discrimination.  Robust health and safety and anti-discrimination policies that aim to reflect a “zero tolerance” approach towards any form of unlawful discrimination should be implemented.  Policies should be properly introduced to all staff.
  3. Investigation Processes. Any complaint of discrimination should be investigated thoroughly and promptly.  Investigations should be kept confidential, and properly documented.
  4. Discipline. If discrimination is found to have occurred, then appropriate disciplinary action against the perpetrator should be taken.  What is appropriate will be dependent on what was found during the investigation and should be taken in accordance with any relevant company policies.
  5. Return to Work. Where an employee seeks to return to work after a significant illness or injury, a detailed and well thought out return to work plan should be implemented.  Employers should work closely with the employee’s medical providers, including psychologists and psychiatrists to facilitate any reasonable requests for return to work, such as a gradual return.  Reasonable adjustments should be accommodated.

Employers are obliged to take appropriate steps in mitigating health risks in the workplace, which includes avoiding unlawful discrimination. Pragma’s specialist employment lawyers can assist with providing advice relating to avoiding and defending claims. Contact us today by clicking here or call us on (08) 6188 3340 and ask to speak to a member of our employment team.