Dealing with Absconding Staff over Christmas

Vince Scopelliti - Wednesday, December 12, 2018

The Christmas period tends to bring out the best- and worst - in people. It is a time of year filled with parties, merriment, laughter, great weather and a lot of socialising. 

But Christmas can also be a challenging time in the workplace, as employees may engage in inappropriate conduct at work related social events, may suffer the after-effects of excessive partying or may be generally less productive or effective than usual. 

It can also result in staff not turning up altogether. We take a look at what employers should do if staff abscond from their roles over the end of year period.

Absenteeism, absconding and desertion: what's the difference? 

Many workers may be tempted to add to their public holidays by taking additional days off after Christmas, especially if they feel that they have been unfairly denied leave over the Festive Season. 

Workers 'pulling sickies' without consent is a type of absenteeism. In order to avoid situations where staff are calling in sick for less than legitimate reasons, employers should remind staff that the usual sick leave policies apply over Christmas. 

Employees must obtain doctor's certificates or other acceptable evidence of genuine illness, even though it may be an inconvenient time for them to do so. It should also be reiterated that failing to attend work after key social functions - such as the annual Christmas party - will be frowned upon and could result in disciplinary consequences. 

Unauthorised leave is a serious enough matter, but what happens if the absence drags on? An employee 'absconds' from work in circumstances where they have been absent, without explanation, for sufficiently long that the employer is entitled to infer that they have no intention of returning. This would apply if the employee has failed to attend for a number of days, without making contact with the employer (who has been unable to make contact in return). 

In cases of desertion, an employee implicitly or explicitly demonstrates that they have no intention of returning to work. Advising co-workers that they will not come back from leave, emptying their work station of personal belongings, and failing to respond to attempts to contact them are all signs of desertion.  

what steps should an employer take?

Although it is generally clear by implication that an employee has no intention of returning to work, employers must still follow due dismissal procedures to ensure that the employee is terminated correctly and fairly. 

This requires several documented attempts to contact the employee. Initial contact should be by phone, followed up by written correspondence notifying that the employee's position will be terminated if they do not explain their actions and return to work immediately. Written correspondence should be sent both to a personal email if possible, and the employee's registered postal address.

what the fair work commission says

A Fair Work Commission decision handed down in January 2018 noted that an employee's absence from work, without consent or notification, for three working days or more constituted sufficient evidence of abandonment. 

If an employee has not provided a satisfactory explanation for their absence within 14 days of their last attendance at work, an employee will be deemed to have formally abandoned their employment and their position will be considered to have been duly terminated. 

why do employees abscond?  

Although the reasons for employees absconding are many and varied, some examples are:

  • They have obtained employment elsewhere (and accordingly do not feel that they have any need for positive references);
  • They are dealing with personal issues which exceed their desire or ability to be present at work over the holiday period; 
  • They feel that they have engaged in particularly embarrassing or career limiting behaviours over the festive season. 

In particular, the Christmas period often makes people re-evaluate their life decisions and take stock of what they want (and don't want) in the New Year. Terminating a working situation that doesn't suit them, could potentially be at the top of their list. 

How to keep staff engaged and avoid staff going AWOL

Although most organisations strive to be an employer of choice throughout the year, it is important for staff to be reminded at the end of the year that they are valued, and their hard work has been appreciated. 

Celebrate the achievements of the past year, and if appropriate, reward staff with a festive bonus. Organisations should also strive to offer a fun, slightly more relaxed environment over the festive season. This might include offering extra snacks in staff common areas, and holding informal social events. This can carry over into the New Year, to help ease the way back into work. Another suggestion is to allow staff to dress casually in January and keep things fun with a holiday photo competition or barbecue lunch. 

Employers should approach the festive season proactively, reminding staff of the conduct expected of them, and the requirements around leave during this period. If your organisation encounters an issue with staff, WISE investigates matters of misconduct and can assist in establishing the facts. Contact us for an obligation-free investigation quote.  

Creating a Safe and Healthy Workplace For All

Vince Scopelliti - Wednesday, October 24, 2018

Developing a positive working environment where all employees are supported is key to looking after the mental wellbeing of your staff, and freeing them up to be their most productive selves. 

A safe and healthy workplace is one which is inclusive and caters for the needs of all workers. According to the Australian Human Rights Commission (AHRC), a two-fold approach where the development of long-term policies is coupled with direct support services for workers is most effective. 

Let's take a look at the elements of a positive workplace, how to minimise potential risks to the wellbeing of your workers and what types of policies are crucial. 

characteristics of a safe and healthy workplace

By taking steps to improve the working environment, not only is the office a more pleasant place for everybody to be, but the risk of workers suffering from or exacerbating a pre-existing mental health condition is reduced. 

A safe and healthy workplace is one that offers:

  • The opportunity for staff to take regular rest breaks.
  • Minimal requirements to work overtime or have too high a workload, or at the very least adequate division of labour to minimise the impact of excessive workload on staff. 
  • Workplace mentoring and support programs.
  • Flexible work hours where required. 

COmmitment to a strategy for creating a healthy working environment 

It is not simply enough to announce your intention to foster a supportive, healthy and safe workplace - instead, a proactive strategy needs to be designed and implemented. 

In practice, this is likely to include commitments from all areas of the business to:

  • Ensure that policies, mission statements and procedures are designed and published (and easily available to all staff)
  • Implement the strategies and ensure that the commitment is not simple lip service - for example, ensuring that flexible arrangements are actually offered, not just promised. 
  • Consult with workers as to what they consider are essential elements of a safe and healthy workplace. 

Minimising potential hazards and risks

When formulating strategies, it is important to consider whether there are any hazards or risks to the mental health of your staff that could derail the improvements being implemented. 

Risks to look out for include:

  • Poor management, including lack of control and a failure to provide recognition or reward.
  • Workplace conflict (whether between peers or in the chain of command). 
  • Bullying or harassment.
  • Excessive workloads and stress.

When staff are feeling overwhelmed because of difficulties with their work itself, the likelihood of having a healthy and safe workplace is far lower.  

proactive measures to achieve a healthy workplace

One of the most important elements of creating a safe and healthy workplace is having adequate policies and procedures in place. In practice, this will mean policies relating to:

  • A commitment to a safe and healthy working environment
  • Confidentiality, mental health training and general mental health guidelines
  • Anti-discrimination
  • Harassment and bullying
  • Reasonable adjustments to help workers who are struggling with mental health issues. 

By having these policies in place, and ensuring that they are adhered to, all staff are able to be supported and an inclusive workplace is encouraged. 

Where to get assistance

If you are interested in improving your workplace, we can help you formulate the right policies and procedures. Talk to our team today. 

Managing Mental Illness in the Workplace

Vince Scopelliti - Wednesday, October 17, 2018

What can employers do to support and effectively manage employees who may be struggling with their mental health?

With an estimated one in five Australian adults suffering from a mental illness in any given year, this is becoming an increasingly important question for organisations to answer. 

From talking to an employee with a mental illness to addressing performance concerns, here's how employers can help support workers with mental health issues. 

how to talk about mental illness with a worker? 

Employers can't be expected to be experts, but when speaking with an employee about a mental health issue, it is helpful to have a basic understanding of the condition in question. This might include any symptoms, specific terms that relate to the condition and types of medications the employee is likely to be prescribed. 

How conversations are framed is crucial - employers should refer to employees as 'having' mental health conditions, as opposed to 'being' schizophrenic or depressed. Employers should also understand the difference between episodic and chronic mental health issues. 

Prior to conversations with employees about their mental health, employers need to ensure that they are prepared, have planned what they wish to discuss and offered the employee the opportunity to bring a support person with them. Employers may also make use of the assistance of a qualified mental health professional when approaching these meetings. 

concerns regarding an employee's mental health

While a physical injury might be obvious, it can be much more difficult to determine if an employee is struggling with their mental health. It is important for employers to remember that there isn't always an obligation for employees to disclose their mental health status. 

In these circumstances, an employer concerned about an employee's mental health can speak confidentially with them and advise them that they may be able to access support from a formal Employee Assistance Program (EAP). The employer may also wish to ask whether there is anything that they can do to modify or improve the workplace to assist the staff member. 

what to say to other employees

If an affected employee has volunteered details of their mental illness, and has agreed to disclosure, employers may wish to sensitively and respectfully disseminate information about the specific condition, or even arrange for mental health specialists to attend the workplace and provide information. 

Employers must not breach an affected worker's privacy and disclose matters that are personal to them. On some occasions, however, an employee's mental health condition may potentially impact other colleagues, or health and safety and must be disclosed. 

When a disclosure has been made, employers need to ensure co-workers:

  • Are supported in relation to any increased workload arising from their colleague's absence;
  • Have their concerns addressed and discussed in an appropriate forum;
  • Are offered access to internal or external counselling services;
  • Are protected from possible harm. 

Making reasonable adjustments

Workers who are struggling with mental health issues may find that they are able to contribute in a much more substantial way if their employer is prepared to make reasonable adjustments. These could include:

  • Flexible working hours or working from home arrangements
  • Moving an employee's physical location (i.e. into a quieter area, closer to a window, away from a co-worker who is triggering their condition)
  • Permitting employees to record meetings or take electronic notes if they are concerned about their memory. 

Addressing performance concerns

When an employer has concerns about an employee's capacity or capability to perform their duties, it is appropriate to apply the organisation's standard performance management system, and provide support to assist the employee. This support should be offered regardless of whether or not the employee has disclosed a mental health condition. 

Employers should consider:

  • Personal circumstances that may contribute to a worker's performance issue, as would be the case for all workers; 
  • Whether a mental illness may be contributing to the poor performance;
  • The seriousness of the performance concern (as for more serious matters, such as violence, there may be no option but to take strong disciplinary action regardless of whether there is a reason, such as a mental illness); 
  • Whether the performance concern relates to a key part of the job or whether reasonable adjustments can be made;
  • Encourage and enable the worker to discuss the performance concerns and whether there are any health issues that may have impacted on their performance. 

If the concern doesn't resolve and the adjustments don't work, employers may need to revisit the issue at a later date. 

If you'd like more information, check out our series of articles on this topic, starting with Mental Health in the Workplace. WISE can also assist with drafting and implementing policies and guidelines around disclosure, reasonable adjustments and speaking to colleagues about mental health.

To Disclose or Not to Disclose

Vince Scopelliti - Wednesday, October 10, 2018

For many employees, one of the most difficult aspects of navigating the modern workplace is deciding whether to disclose a mental health issue.

Not every employee is required to be open about their condition, and there is often a fear of the potential consequences for their career if they are. 

We take a look at when an employee is obligated to disclose, what employers must do, and the pros and cons of disclosure. 

what does the law say about the employee's responsibility? 

When dealing with mental illness in the workplace, employees are not required to share details of their condition with employers unless there are legitimate concerns that it may affect their ability to perform their role properly. 

For example, employees who operate heavy machinery but are struggling with alcoholism, drug addiction or are reliant on certain types of medication should advise their employers, so that they do not risk their safety or that of their colleagues. 

Failing to share this information could mean that the employee is in breach of their obligations under Work Health and Safety legislation.

what must employers do?

Commonwealth legislation determines that it is unlawful for employers to discriminate against their employees for a variety of reasons, including discrimination on the basis of a mental health condition. 

According to the Disability Discrimination Act 1992 (Cth), employers cannot act in a discriminatory fashion towards employees based on past or future conditions, temporary or permanent conditions, or actual or imputed disabilities. 

Types of discrimination which employees with mental health conditions may face include:

  • Direct discrimination, for instance when a candidate is not hired or an employee is disciplined inappropriately because of their mental health. 
  • Indirect discrimination, for example requiring all employees to eat lunch in the staff lunchroom - which for instance might cause difficulties for employees with anxiety. 

Choosing not to make adjustments for an employee who is struggling with their mental health is a form of discrimination. 

There are also obligations on employers around disclosing an employee's mental health status to others in the organisation. All employment relationships include an inherent requirement of confidentiality, which means that employers are prevented from discussing or disseminating information about their employees' mental health. 

Exceptions can be made in circumstances where the information must be shared in order to prevent or lessen a serious and imminent threat to the life or health of the employee or as required by law.

pros and cons of disclosure

Workers who don't have an obligation to disclose often struggle with the pros and cons of sharing this information with their employers and co-workers. 

A clear advantage of disclosing this information is that colleagues are aware of the circumstances under which the employee is operating and can provide a level of social support. Managers who know that a team member is struggling with mental health issues may well be more sympathetic, and can assist by providing more flexible working arrangements, lessening workloads in times of crisis, or otherwise ensuring that the workplace is generally accommodating of the employee's needs. 

Further, ill-founded rumours or gossip may be avoided by an employee being open about the difficulties they are facing and could help de-stigmatise mental health issues in the workplace. 

Disadvantages include sharing very private information with colleagues, which may be disseminated to other people in the organisation and have the potential to result in harassment or discrimination. This may be particularly relevant in circumstances where the mental health condition is temporary or does not affect the ability of the employee to perform their duties adequately.

mental health and wellbeing in the workplace

Employees can contribute to good mental health at work by:

  • Taking care of themselves
  • Avoiding known triggers
  • Participating in exercise
  • Taking regular breaks during the work day
  • Staying up to date with any medication 
  • Relying on a support network (both inside and outside work)
  • Avoiding external influences like excessive alcohol or drugs. 

If you would like more information on mental health in the workplace, check out our series of articles on Mental Health in the Workplace. WISE Workplace can also assist employers with drafting and implementing policies relating to mental health disclosure.  

Mental Health in the Workplace

Vince Scopelliti - Wednesday, September 26, 2018

Making sure that your staff are fit and healthy, enabling them to perform their duties at an optimal level, forms an essential part of being an employer of choice. But beyond ensuring that your staff are physically capable, it is essential to also look after their mental wellbeing. 

Underestimating the importance of mental health in the workplace is likely to have lasting impacts on your workers, your business and clients. 

OHS legislation requires employers to provide a safe and healthy work environment for all workers, which does not cause ill health or aggravate existing conditions.

In a series of articles, we'll examine the impact of mental health issues in the workplace, how to take appropriate steps to support staff suffering these conditions, and how you can promote mental wellness in your organisation. 

WHAT IS mental health?

Mental health is about emotional, psychological and social wellbeing. For an employer, this means keeping an eye on whether your staff are struggling to keep on top of things inside and outside of work, and taking steps to assist them with dealing with any difficulties that may be impacting their productivity. 

There are many types of mental illness, including depression, anxiety, obsessive compulsive disorder, personality disorders (such as borderline personality disorder), bipolar disorder, and schizophrenia.

the scope of the issue

According to the Australian Human Rights Commission (AHRC), around 45% of Australians aged between 16 and 85 will suffer from the symptoms of mental illness at some point during their lives. In any given year, one in five adults will deal with a mental illness. 

Some workers will commence their employment already suffering from symptoms of mental illness, while others may develop their mental illness while at work. 

In many cases, the mental illness will develop separately from circumstances in the workplace. In others, a negative or "unhealthy" work environment will contribute to staff developing mental health issues or may exacerbate underlying conditions. 

Some factors which can contribute to poor mental health in the workplace include job stress, poor workload management or unrealistic deadlines, poor communication, bullying and an overall lack of support.

the impact of poor mental health

Research shows that the cost to business of failing to pay proper attention to mental health is significant. 

The AHRC reports that workers compensation claims relating to stress and associated mental illnesses cost Australian businesses $10 billion every year. The failure of businesses to recognise the potential impact of mental health issues and failure to implement preventative or remedial measures such as early intervention, has been estimated to cost over $6.5 billion per annum. 

Absenteeism due to mental illness is another issue, with an estimated 3.2 days lost each year per worker. 

The difference between job stress and psychological injury

When it comes to identifying mental health issues in the workplace, there is a difference between work stress and psychological injury. 

Psychological injury includes behavioural, cognitive and emotional symptoms which have the potential to significantly impact a worker's ability to perform their job and interact with co-workers. 

This can be distinguished from job stress, which is generally a reaction to a specific situation which can be resolved, and is not a standalone injury.

To disclose or not to disclose 

In some circumstances, it is important for employees to disclose their mental health status. This is particularly the case if they are taking medication which could affect their ability to perform their usual employment, or if there are general concerns about safety or interactions with other staff. 

An employer has an obligation not to discriminate against staff because of their physical or mental attributes, including their mental health.

Managing and supporting mental health in the workplace

Employers can provide support by having guidelines in place for how to talk to a worker who has disclosed that they are suffering from mental health difficulties, and how employees can adjust to dealing with a colleague with a mental health issue. 

It's also essential for employers to know how to address performance concerns involving employees who are experiencing mental health struggles, without discriminating or taking ill-considered disciplinary steps.

Creating a safe and healthy workplace for all

This starts with non-discriminatory employment practices and implementing long-term strategies to promote a healthy culture and a positive workplace where staff feel they are making a meaningful contribution to an overall goal, are supported and happy to come to work. 

It's also important to create direct services to assist workers with mental health issues who require support and adjustments in the workplace. According to the AHRC, every dollar spent on identifying, supporting and managing workers' mental health issues, yields nearly a 500% return in increased productivity. 

It is highly likely that at least one worker in your workplace will, at some point in time, have a long or short-term mental illness. While you do not need to become an expert in mental health, having a better understanding of what mental illness is (including its possible effects on a worker) enables you to be more effective in handling issues that may arise.  

Fighting Age Discrimination in the Workplace

Vince Scopelliti - Wednesday, July 11, 2018


At any given time, there are multiple generations operating in the workforce: new starters, more established professionals and those heading towards retirement.

While this can create a diverse positive workplace, where a range of different experiences, attitudes and learnings can be shared, it also creates a possible environment for age discrimination.

Age discrimination can occur at all stages of employment, including recruitment, the general office experience, in workplace terms and conditions and at dismissal.

What is age discRimination? 

It is against the law to discriminate against anybody in the workplace because of their actual or assumed age.

There are two main categories of age discrimination:

  • Direct age discrimination. This applies if somebody facing a disadvantage or an advantage in the workplace exclusively because of their age. For example, if an older person is overlooked for promotion because it is assumed that they are not as comfortable with technology as a younger person, this would be direct age discrimination.
  • Indirect age discrimination. This is more difficult to identify and generally applies in circumstances where there is an ostensibly fair policy in place for all staff, which nonetheless is likely to affect staff of different ages in different ways. An example could be an employee being selected for redundancy simply because they are thought to be closer to retirement age and less likely to be affected by the redundancy.

Not Just a problem for older workerS

Although many people assume that only older workers are discriminated against, workers of all ages can become victims of age discrimination.

Examples include:

  • Young workers may be discriminated against due to:
      • Their relative inexperience in a role.
      • A perceived belief that they take their job less seriously, which may lead to them being overlooked for promotion.
      • A failure to receive increases in remuneration because co-workers who are older and have families are considered to be in greater "need" of increased pay.
  • Middle aged workers may experience discrimination arising from:
      • A perception that they lack the seniority and experience of older workers but don't have the "fresh ideas" of young staff.
      • Company events being held at times when staff with young families may struggle to attend.
  • Older workers may experience age discrimination due to:
      • A perception that they do not understand or cannot keep up with new technologies.
      • Their ideas being dismissed as being "outdated" or "old fashioned".

Legislation governing age discrimination

The applicable Australian legislation is the Age Discrimination Act 2004, which ensures discrimination is against the law, including in employment, accommodation, service provision or education.

However, it is important to remember that in certain circumstances it is lawful and may even be appropriate to treat people of different ages differently. These include:

  • When required to do so by state or Commonwealth law (for example, superannuation funds not being permitted to release money until members have reached a certain age).
  • Complying with certain health and employment programs.
  • Paying staff in accordance with youth agreements and awards.

Similarly, if somebody's age prevents them from performing the inherent requirements of the job they have applied for, it is not discrimination to refuse that employment. For example, if somebody under the age of 18 applies for a job in a bar then it is obviously not discrimination to refuse them employment.

What to do if you're experiencing age discrimination

As an employee, if you feel that you are experiencing age discrimination, you can either elect to take up any complaint internally (through the organisation's usual complaints procedures) or by making a written complaint to the Australian Human Rights Commission. Once received, the complaint can be investigated, and attempts made to resolve it via conciliation.

Alternatively, a final option could be to pursue a complaint through the Federal Court of Australia or the Federal Circuit Court.

What can workplaces do to help prevent age discrimination

Having strong policies in place to ensure that all staff are treated equally regardless of their age is one of the key factors in preventing age discrimination.

Providing equal access to training opportunities for all employees and offering flexibility around hours regardless of life stage can also help fight discrimination.

If you need help with age discrimination workplace policies and procedures, or if you have a question about age discrimination that you'd like to discuss, contact WISE today for support and guidance.

Navigating the Choppy Waters of Mental Illness at Work

Vince Scopelliti - Wednesday, December 06, 2017

Mental Illness is highly prevalent in our society - 45% of Australians aged between 16 and 85 will experience a mental illness at some point in their lives, and 20% will suffer from mental health issues during any given year. 

Given these statistics, employers will likely deal with at least a few employees who have mental health issues annually. 

So, what is expected of an employer in this situation? 

understanding mental illness

The first step is to understand that there are many types of mental illness. Depression and anxiety are very common, and fall into the category of mood disorders. Other types of mental illness include personality disorders or psychotic disorders, amongst others. 

Generally speaking, a person getting appropriate treatment for a mental illness can be an active contributor in the workforce and the community, and the vast majority of people suffering from mental illness do not pose any risk to others. 

A mental illness may develop separately from the workplace, for example due to issues stemming from the sufferer's personal life. However, the average employee loses 3.2 work days per year due to the impact of dealing with workplace stress - so it is clear that the workplace can be a significant contributing factor in mental health issues. 

managing the contributing factors at work

An employer has a duty of care to ensure that the workplace is safe and healthy for employees. Employers need to identify workplace practices or actions which could cause or contribute to mental illness, and eliminate or significantly reduce the risks associated with these. 

This includes preventing bullying or harassing behaviours, ensuring that managerial staff are trained in properly dealing with performance management and with staff who are experiencing mental health issues, and even limiting situations where excessive alcohol use may be encouraged.

supporting workers who disclose a mental illness

Employers should take steps to ensure that those workers who are suffering with their mental health have access to appropriate resources, including flexibility to attend medical appointments, ease in accessing days off when necessary, and perhaps in-house counselling sessions or a mentoring program. 

When dealing with an employee who has reported their mental illness, employers should be prepared to ask questions such as: 

  • How can we help?
  • How can we make you feel more supported?
  • What are your triggers and how can we manage these in the workplace?
  • Are you coping, and if not, what strategies can we implement to help you stay on top of things?

From a legal perspective, an employer is also required to ensure that workers are not discriminated against or subjected to any adverse action because of their mental health status.

what happens if a worker doesn't disclose? 

In developing a strategy for dealing with mental health issues in the workplace, employers should consider how they can encourage workers to be comfortable in disclosing their status. This will require members of the HR team to be equipped with the skills to ask the right questions. 

Employers can also inform staff who they suspect may be struggling with their mental health about an option to seek confidential support for an Employer Assistance Program or external professional advisor.

In circumstances where an employer is concerned about a worker who is displaying symptoms of mental illness but has not disclosed any conditions, the supervisor should be appropriately trained and prepared to open a dialogue with the employee. 

Alternatively, an employer could monitor data such as employee workload, unexplained absences or lack of productivity, and seek the employee's consent to obtain medical information. Armed with this information, an employer can create a flexible environment within which each worker can be encouraged to perform at their best. 

protecting all employees

It is incumbent on employers to remember that they must balance the potential risks to all of their employees. 

Although they cannot discuss an employee's mental health status, if the employer is genuinely concerned about the potential impact on colleagues or the business itself, appropriate steps can be taken to performance manage or otherwise discipline the employee. 

However, in taking such action, it is crucial for an employer to ensure that it is poor performance or risky behaviour which is managed or disciplined, and that the worker concerned is not discriminated against on the grounds of their mental health status. 

Employers should also consider developing a mental health policy. This document can be used to demonstrate that all staff are entitled to confidential support free from discrimination, harassment or bullying, regardless of their mental health status. 

It can also be used to demonstrate that staff who are acting inappropriately in the workplace cannot simply rely on their mental illness as an excuse to endanger themselves or others on an ongoing basis. 

Key issues which should be address in the policy include: 

  • Access to confidential support and consultation for all staff
  •  Anti-harassment and bullying protocols
  • Policies and procedures relating to reasonable adjustments which may be required to assist staff with a mental illness
  • Identification of risks in the workplace and strategies for minimising the potential impact on staff if they are exposed to those risks (such as a death, or trauma in the workplace)

How can we help

Navigating your way to a mentally healthy workplace isn't easy. If you'd like assistance in encouraging a supportive work environment in your organisation, including drafting mental health and anti-bullying policies and creating appropriate performance management programs, contact us

How Can Employers Assist Workers with Acquired Brain Injury

Vince Scopelliti - Wednesday, August 16, 2017

A decision by the Queensland Court of Appeal highlights why employers must take into account the needs of workers with an acquired brain injury, in order to avoid being considered to have discriminated against them. 

In Chivers v State of Queensland (Queensland Health), the Court of Appeal heard a case pursued by Ms Chivers, who was employed as a registered nurse with Queensland Health (QH). She had an acquired brain injury from a horse riding accident in 2004. As a result of her accident, she experienced headaches and nausea and was unable to work night shifts. 

QH initially accommodated her working requirements. However, despite QH's apparent support of Ms Chivers, her probationary period was extended on three separate occasions, ostensibly to allow an assessment of her ability to work nights. Eventually, after one year, Ms Chivers resigned and claimed that QH had discriminated against her by failing to confirm her employment. 

In its defence, QH argued that working nights was a 'general occupational requirement' for registered nurses who were employed in 24/7 wards, and that Ms Chivers failed to comply. But Ms Chivers presented evidence of other nurses in permanent employment who were not required to work across all shifts, despite being employed in the same 24/7 wards. 

The Court of Appeal held that the ability to work across all shifts was not a genuine occupational requirement. 

Although there can be specific challenges when working with people suffering from an acquired brain injury, this does not mean that they can or should be discriminated against in the workforce - including when it comes to conducting workplace investigations. 

What is an acquired brain injury?

Acquired Brain Injury (ABI) is the term used for any brain damage, which is sustained after birth. Causes include physical head trauma, strokes, brain tumours, brain infections, alcohol and drug abuse or neurological diseases such as Parkinson's disease. This term is used to describe both permanent and temporary injuries. 

Those suffering from an ABI are likely to experience ongoing difficulties with: 

  • Concentration
  • Processing information at speed
  • Fatigue
  • Memory
  • Problem Solving and lateral thinking
  • Organisation of thoughts and activities 
  • Planning
  • Self-control and monitoring
  • Insight into personal behaviours
  • Emotional lability
  • Restlessness (physical and emotional) 

tips for managers of employees with an abi

Perhaps the greatest potential challenges are difficulties with memory, cognition and communication. When communicating with people with a disability, it is important for managers not to focus on the potential restrictions of their employees, but to consider how to get the best out of their workers. 

In the context of an ABI, this is likely to take the form of:

  • Flexible working arrangements, such as part-time or reduced hours, or the ability to call in sick with short notice. From a recruitment perspective, one of the best ways to ensure that everybody's needs are met is to ask potential employees who have declared an ABI to provide any assessment or medical treatment reports which could provide guidance as to their capacity and daily needs. New employees should be encouraged to undergo a work trial period, during which both employer and employee can consider what tweaks might be necessary to ensure that the arrangement works optimally for both parties. 
  • Developing appropriate risk mitigation strategies. This includes ensuring that both employer and employee are aware exactly what is and might be required of the employee with the ABI, so that their role is clear. Other strategies include making sure that workers compensation and medical leave certificates are appropriately filled in, even if the employee is required to take a lot of sick leave. This will help to ensure that events are well documented in case a dispute arises. 
  • Ensuring that instruction manuals and written directions are easily accessible and clear. People who suffer from an ABI may require frequent reminders and mnemonics to perform their job to their full ability, and facilitating this will help an employer to best unlock an employee's potential. 
  • Implementing a workplace buddy system. A dedicated buddy can not only provide ongoing emotional and personal support, but also assist with simple memory jogging and reminders when needed.

undertaking workplace investigations involVing an ABI

The difficulties inherent in the workforce for people suffering from an ABI are magnified when a workplace investigation needs to be conducted - regardless of whether the employee with an ABI is the victim, the respondent or a witness. 

In order to counter difficulties associated with an ABI, employers engaged in investigative interviewing should consider strategies including: 

  • Prior to conducting an interview with a person with an ABI as part of an investigation, the investigator should make an assessment about the witness' communication, including skills, abilities and whether they use any types of communication aids. 
  • Talk to other staff or human resources to obtain some further information that can assist in understanding how best to work with the employee with an ABI. 
  • Reducing distractions during the interview (for example, make sure the radio is turned off and there are no unnecessary staff sitting in on the interview). 
  • Using short and simple sentences to avoid confusion, especially when putting allegations to the interviewee. This should also include presenting information slowly and one bit at a time.
  • Giving frequent reminders of the next step - this is particularly important from a procedural perspective. From an employer's perspective, this is also important to avoid any allegations of abuse of process or discrimination. 
  • Being prepared to repeat information as often as necessary until the employee clearly understands what is being conveyed. 
  • When the employee is clearly distracted, ensuring that they are brought back to focus on the matter at hand. 

Interviewing an employee with an ABI is challenging and can be very difficult to get right. If you require a highly experienced interviewer to assist with a workplace investigation involving a person with an ABI, or any other disability, contact our investigations team today for expert assistance.

Flexible work: a privilege not a right

Harriet Witchell - Sunday, December 08, 2013

 
Are you or your employees in the dark about their work arrangements? Maybe it’s time to shed light on this. Formalising flexible working arrangements could help protect both employees and managers when it comes to drawing a line in the sand between bullying and harassment and reasonable management action.

A recent case brought against the South Australian Department of Health and Aging is a good example. In this case the court ruled that repeated requests to review flexible working arrangements given to an employee, after her father experienced a fall, did not amount to bullying and harassment and were reasonable under the circumstances.

The court also ruled that by allowing the employee’s flexible arrangements to continue unmonitored for three years, they had inadvertently led the employee to feel that her later start time was a right rather than a privilege. When efforts were made to amend the arrangements, she viewed them as bullying.

When making flexible working arrangements, the court recommended documenting the agreements in a formal way and ensuring follow-up times are set, to review how the arrangements are working for both the employer and the employee.

Spyrou V The State of South Australia (the Department of Health and Aging) 2013 SAEOT 11 (6 November 2013)