Workplace responsibilities in supporting the RTW of an employee

Managers and HR professionals often ask how they can navigate an employee safely back to work after a period of time off work with a mental health issue. DEBRA BRODOWSKI explores a best practice framework.

Given the increased prevalence and significant cost of mental health issues in the workplace (estimated to be $10.9BN per year), Australian employers have noted a recent need to address mental health issues in a timely and responsible manner. The implementation of the Australian Work Health and Safety (WHS) Act 2011, has also highlighted the need to take a proactive approach to addressing workplace mental health issues, irrespective of whether the source of the mental health issue is work or non work related. In particular, Sections 19 and 28 of the WHS Act 2011 outline the duties of the employer and the employee.

From a workplace perspective, in accordance with the requirements under the WHS Act 2011, the safe return to work of an employee that has been absent from the workplace for an extended period of time is considered a necessary requirement. Following from this, it is now lawful for an employer to request additional medical information to support a return to work for an employee who has been off work for a period of time, even for those with mental health issues. This has been shown to be applicable for both requesting additional medical evidence from the employee’s treating General Practitioner, as well as requesting the employee to attend an independent medical or psychological assessment.

Case study

A recent case heard in the Federal Court of Australia, Australian & International Pilots Association v Qantas Airways Ltd [2014] FCA 32 demonstrated the lawful request of an employer, Qantas Airways, for an employee off work for an extended period of time due to mental health issues, to provide medical evidence as a first step for a safe return to work to occur.

In brief, the case heard that one of Qantas Airways flight crew (the employee) initially when off work on 11 July 2012 in relation to suffering from clinical depression, and furnished a Doctor’s certificate stating that he would require four months off work and requested that his CASA license be suspended. In October 2012 the employee’s treating Doctor extended his request for leave until January 2013, with a further medical certificate rendering the employee unfit until 28 March 2013.

During this period of time that the employee was off work, Qantas requested information in relation to the employee’s diagnosis, prognosis, capacity to return to work and the anticipated time frame, initially requesting a Doctor’s report, and then subsequently requesting that the employee attend an independent medical assessment. The employee did not comply with these requests, and instead involved the Australian and International Pilots Association (the Association), commencing proceedings against Qantas Airways.

The evidence provided to the Court showed that Qantas Airways requested additional medical information that would assist in determining:

“first, whether [the employee] would be returning to work in a full time or part-time capacity and what, If any, adjustments Qantas might be required to make in its business and rostering arrangements to assist that”

Justice Rares determined that:

“an employee’s illness can be related to an obligation imposed on the employer under the Work Health and Safety Act and its analogues. The employer must be able to obtain appropriate medical information to ascertain, first, whether its work place or some matter for which it is legally responsible under such legislation has not been a cause of the employee’s condition, and secondly, if it has, how to remedy the situation as soon as practicable.

In my opinion, the Association misconceived the basis on which Qantas was proceeding in the way in which it approached [the employee[ and, apparently the other pilots’, positions in relation to Qantas’ requirements for further information. Qantas did not demand this information early in the course of the illness, where the continued ability of the officers to perform their ordinary duties was not in peril by their absence from flying that would require them to obtain re-certification or regain their licences either from cancellation or suspension by satisfying CASA requirements. The circumstances in which Qantas made its request of [the employee] occurred after his licence had been suspended and it had become apparent that there was an indefinite and uncertain nature about the duration of his sick leave and the potential for him to return to work.”

In this case, under the Work Health and Safety Act 2011, Qantas Airways was required to ensure, as far as is reasonably practicable, that:

• the health, safety, and welfare of their employees at work were not at risk;
• a work environment is maintained without risks to health and safety;
• safe systems are in place to ensure the welfare of employees in the workplace;
• there is the provision of adequate training and supervision to protect all persons from risk.

The employee has the following obligations to follow:

• comply, as far as reasonably practicable, with any reasonable instruction given by the workplace to comply with the Act;
• to co-operate with any policy and procedure of the workplace relating to the health or safety in the workplace that had been communicated to the employees.

A second case, Grant v BHP Coal Pty Ltd [2014] FWC 171, heard at the Fair Work Commission, found that work health and safety obligations can also extend to the employer requesting the employee attend an independent medical assessment to obtain additional medical evidence to support a return to work. This case was heard in consideration of the Coal Mining Safety and Health Act 1999. Whilst this case related to an employee sustaining an physical injury and remaining off work for a period of approximately nine months, the workplace were found to be reasonable in their request for the employee to attend an independent medical assessment to determine if the employee was fit to return to full pre-injury duties, and if any adjustments were required of his role.

Together, these cases demonstrate the provision of a legislative framework under the banner of workplace health and safety that allows the workplace to assess the impact a period of a substantial time off work has had on employee’s capacity to fulfil their substantive responsibilities. Further, the legislation also allows for support mechanisms to be reviewed to ensure a safe return to work occurs for the employee as well as meeting the needs of the business.

Managers and HR professionals often ask how they can navigate an employee safely back to work after a period of time off work with a mental health issue, feeling powerless in relation to the direction that they might be able to take. The WHS Act 2011 has now allowed for the safe, supported, and steady return to work for an employee to occur.

Aside from this legislative framework, from a rehabilitation perspective, there are also best practise guidelines for supporting a safe return to work for an employee:

• Maintaining open and ongoing communication between the employer and with the employee with respect to the employee’s return to work.
• Gaining a better understanding of the employee’s diagnosis and the impact this may have on the psychological demands of their job according to their job description.
• Determining the reasonable adjustments that may be required for a period of time according to the employee’s and employer’s requirements.
• Determining the time frame and prognosis for the employee.
• Providing ongoing support during the graduated return to work for the employee to mitigate any ongoing future risk of future relapse.

Managing mental health and return to work is not only considered good business practise these days, it is also a legislative requirement under the WHS Act 2011.

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