15 February 2016

Guest Post: Effectively managing a mentally ill employee

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Effectively managing a mentally ill employee will challenge the most experienced and skilled manager. Various legal claims can follow decisions to either change work arrangements or terminate the employment of such employees. Only disciplined and careful management will reduce the risk of successful legal claims being made. 

Why is management of these employees problematic?

Firstly there has been a significant increase in the reporting of mental illness in the community. Employers are required to deal with the issue just as they are with respect to the other expectations of the workplace with respect to such issues as flexible work hours.

Secondly, an awareness is required of the respective obligations imposed upon employers, employees and WorkCover agents under the WorkCover regulatory regime.

Thirdly, there are obligations imposed on employers to make reasonable adjustments to employment arrangements for mental disability under anti-discrimination legislation.

Fourthly, employees have protected rights under the Fair Work Act with respect to unfair dismissal, temporary absences and adverse action.

However employers should not despair totally as there are defences available that will allow for either changes to be made to or termination of employment in circumstances where adjustments either would be ineffective or not reasonably feasible.

Keeping at the forefront of one’s mind that detailed medical opinion is required and that an employee must be fully involved in the process before any decisions are made with respect to employment, will provide good guidance for employers.

Specialist medical opinion must address a number of relevant aspects including most importantly an employee’s future capacity to perform the inherent requirements of their employment. An employee must be given time to see whether their condition will recover to a point that allows them to perform their role and to participate in the process of assessment required to be undertaken by an employer.  At the same time employees are obliged to cooperate and follow the reasonable directions of their employer during that assessment process.

Further when employers are assessing what can be done to assist an employee, they also need to be weighing up the cost and impact of providing that assistance before making any decisions about the employment of the employee.

What is certain is that patience, empathy and persistence are required of an employer!

Sean Millard, Partner of CCI Law will be speaking at Akolade's upcoming 10th Fundamentals of Workplace Law in Melbourne on Managing the return to work of employees suffering mental illness.

Since 1987 Sean has been providing advice to employers with respect to employee/contractor issues, WorkCover and Occupational Health & Safety, employment contracts, employment issues arising out of the sale of businesses, discrimination, investigations, enterprise agreements and industrial disputes.
In his role as Principal, Sean also provides the role of In House Legal Counsel to the Victorian Chamber.
Sean is a graduate of Melbourne University Law School and is a Law Institute of Victoria Accredited Specialist in Workplace Relations. He holds a diploma from the Australian Institute of Company Directors Programme. Sean is a member of the Industrial Relations Society of Victoria and the Australian Corporate Lawyers Association.
Before joining CCI Lawyers in 2010, Sean had worked in mid size CBD legal practices.

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