A leading industrial relations and employment lawyer today warned employers the way in which staff are managed is directly relevant to potential liability in a work-related stress case.
Speaking at the Australian Higher Education Industrial Association (AHEIA) Conference 2002 in Sydney, Mr Bruce Moore, partner, Mallesons Stephen Jaques told delegates the ways in which people are managed reflects very much the reality of employer’s policies on equal opportunity and taking measures to ensure the employer’s duties in respect of occupational health and safety are fulfilled.
In delivering his speech, ‘Work-related stress: identifying sources of employer liability and managing responses’, Mr Moore stated until recently stress was considered a normal part of working life, and excessive stress merely a by-product of poor organisational or coping skills.
“In the last few years, stress has been increasingly recognised as a legitimate and serious workplace concern, which may create a responsibility on the part of employers to develop adequate mechanisms for preventing and dealing with it.
“Failure to take steps to deal with the causes of workplace stress can have direct and significant consequences for employers, both in terms of lost productivity, and also in terms of increased risks of employee compensation claims. If there is a failure to adequately deal with the stress in the workplace now, significant costs are likely to be incurred later, as a result of increased incidence of claims, and consequently higher compensation costs,” he said.
In the legal context Australian employers face potential liability under both statutory and common law.
“Under common law principles, an employer has a duty to take reasonable care to avoid illness or injury to employees in connection with their employment. There is a similar, but usually stricter, duty imposed by the occupational health and safety legislation,” explained Mr Moore.
“With increasing emphasis on human rights and the evolution of anti-discrimination law, disability discrimination has emerged as one of the major aspects of legal regulation which can also affect an employer’s obligations in relation to workplace stress.”
To answer the question, ‘what is stress’, Mr Moore explained in the context of occupational health, stress is defined as “the result of the body’s reaction to excessive levels of pressure caused by various environmental factors.” It has also been described as a set of physical, mental and biochemical conditions within a person’s body which reflect its attempt to adjust to pressuring situations.
Mr Moore said it was critical employers are aware of these definitions. “Stress has both a physical and a psychological component; and second, it is inherently reactive and hence dependent on the individual’s reaction to the stress-causing situation. It is important to appreciate the dual psychological and physiological nature of the condition, particularly because it can be overlooked in dismissing stress as merely a product of the mind.”
The reactive nature of the impact of stress means that it is inherently variable, depending on the personality of the individual. “This should be borne in mind by employers, not only in relation to their obligations under the Disability Discrimination Act 1992, as the impact of stress could be categorised as a disability under that legislation, but also in relation to managing the causes of stress in a particular individual,” he added.
There are three recognised elements which if actively pursued by an organisation, according to Mr Moore will substantially reduce exposure to legal liability for the potential/impact of stress on individual employees. These are:
1. The way in which people are managed and their work is organised;
2. Employee assessment procedures and strategies for resolution of work-related issues including, for example, supervisor and peer support programmes; and
In conclusion Mr Moore stated “the overriding suggestion I make from the perspective of legal liability risk is that the employer’s general policies in respect of the management of occupational health and safety, discrimination, and workers’ compensation should be applied in relation to stress risks - with a similar approach and similar attention to detail as those policies are applied in relation to other aspects of the employer’s workplace and management processes.”