Stress and bullying at work are hot topics that need to be understood by employers who, at the end of the day, will bear the brunt of employees’ suffering from these woes. As Maria Saraceni and Asanka Gunasekera write, their harmful impact threatens quality of service, productivity, quality of work and occupational safety and health
First, what is stress? A working definition from a psychological perspective is the gap between an individual’s coping skills and the demands of the environment they function in.
However, stress is not necessarily a negative phenomenon. Some stress is positive and is normal and necessary to perform work in a satisfactory manner. But, if stress is intense, continuous and repeated, and if the person is unable to cope or if support is lacking, then stress will have adverse effects, sometimes leading to physical illness and psychological disorders.
Secondly, what is occupational stress? Arguably, the harmful physical and emotional responses occurring when the job requirements, work environment or work organisation do not match an employee’s capabilities, resources or needs.
Thirdly, what are the main sources of workplace stress? General demands of the job, lack of control over one’s situation, change, conflicting roles, interpersonal relationships, lack of support at work and imbalance between work and life. These are the tip of the iceberg.
Fourthly, what obligations does the law impose on employers and why should they concern themselves with stress at the workplace?
Finally, where stress at work causes an injury or illness, is it compensable under the relevant workers compensation scheme? And what (if any) defence does the employer have to such a claim?
The realities of stress
Although stress has universal significance, its perception and understanding will vary among different cultures and age groups. In multicultural Australia, with an ageing workforce, this factor must be taken into the equation when assessing how to deal with it. Using only one measure to assess stress, such as relying on receipt of a complaint, should not be an employer’s focus at the workplace. Nor is assuming that your personal experience is the best criteria to judge whether an employee is suffering from stress. These solitary measures do not account for cultural or generational differences or sensitivities.
Denying the existence of stress may reassure an employer, at least for a short time, but in the fullness of time it is counterproductive in that the stress will tend to associate with workplace hazards, such as bullying, and together they make the working environment unbearable and unsafe. Avoiding or punishing the employee suffering from stress only serves to drive an irreversible wedge into an employment relationship.
In those circumstances, an employee tends to internalise their responses to stress and their thinking patterns become inflexible, while their feelings range from anger, frustration and guilt and their behaviour becomes socially unacceptable (for example, banging things, irritability). As a result, physical symptoms such as hypertension, headaches, migraines, heart palpitations and upset stomach come to the fore.
Managing stress can occur on various levels depending upon the level of stress, its longevity, an individual’s ability to handle it, the individual’s personal circumstances and the employer’s capacity and preparedness to deal with it.
Why should an employer deal with stress?
Legally, obligations are imposed on an employer both at common law and by legislation. The obligations include an employer being good and considerate towards the employee and not doing anything to destroy the necessary trust and confidence with its employees.
Similarly, an employer must, so far as is practicable, provide a safe place to work, a safe system of work and provide information, training and supervision as is necessary to minimise hazards at work. A healthy working environment encourages optimal physical and mental health in employees as does the correlation of the amount and nature of work to their capabilities in light of their physical and mental health.
This common law obligation is mirrored in OHS legislation, which is being used more and more beyond its more traditional field of manual labour and blue collar work to the services sector and white collar work.
The precedents of stress
In two recent decisions, workplace stress resulting in psychological or psychiatric injury has meant that employees have sued their employers for breach of implied and contractual duties and negligence and have been awarded damages.
In Cerebos (Australia) Ltd v Koehler, the employee was unsuccessful in that she was unable to establish that her injury had been reasonably foreseeable albeit she had complained to her employer about her ever-increasing workload and the intensification of her work duties that caused her to suffer a psychological injury. While in Hart v Comcare, the employee who twice failed to get a promotion was awarded compensation because of a disappointing promotion process that she had been involved in – particularly, the application and interview process.
These decisions serve as a wake up call to employers that they need to be proactive when managing risk at the workplace. It would be prudent for employers after consulting with employees to develop and implement policies and procedures to reduce exposure to occupational stress.
They should also initiate and support programs to inform, educate and train employees about preventing occupational stress, the policies and procedures which have been put into place and about the support mechanisms for those suffering from stress.
Assessing the risk of occupational stress and ongoing evaluation of the measures put in place to reduce stress should be an ongoing process to ensure effectiveness. Employees should review (and, where appropriate, take action with respect to) working hours, job design, communication effectiveness, work practices, improving the way in which new technology is introduced, improving the physical work environment and workplace design and general; and focusing on well being and fitness at work.
Where employers do not manage stress well, they will find themselves subject to a workers compensation claim for stress which is now a recognised disability. Increasing numbers of claims and consequential rises in premiums has, for example, resulted in amendments to limit the scope of claims by excluding stress disabilities caused by dismissal, retrenchment, demotion, discipline, transfer or re-development or situations where a worker was not promoted, reclassified, transferred or granted leave of absence. Even a worker’s expectation of one of these factors is excluded from the scheme of compensation for disability. In those States and Territories where such limitations have not yet been included, it is only a matter of time before exclusion in an attempt to close the floodgates.
If a worker can show that an employer has acted in a harsh and unreasonable manner, then the worker has a good chance of successfully rebutting the employer’s attempt to rely on one of the exclusions in defending a stress claim. Any action by the employer that denies a worker procedural fairness or a ‘fair go all round’ would constitute harsh and unreasonable conduct.
Short of this, the employer may rely on the statutory exemptions. To succeed, the employer must be capable of producing convincing evidence in support of its position, where an employer’s own policies and procedures have not been followed in dealing with a worker claiming stress, usually in a well meaning but useless attempt not to rock the boat, then the employer has no-one to blame but itself.
As has been recognised in the Draft ILO Code, tackling stress using comprehensive approaches through which the health, safety and well being of workers becomes an integral part of the process of continuous improvement of services, is becoming increasingly successful in managing workplace stress.
By Jackson McDonald’s Maria Saraceni, partner and Asanka Gunasekera, lead advocate.
