(EP 25) Georgie Chapman – Why Mid-Sized CEOs Can’t Ignore Bullying & Stress

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Georgie, thanks very much for joining me. today we’re going to be talking about bullying and stress and how we handle that in the workplace and what are the legal implications for employers. So tell me, how do we actually define bullying and stress?

The accepted definition under the Fair Work Act, and by most safety regulators in each state and territory, is that bullying is repeated unreasonable behavior that creates a risk to health and safety. It can be behavior directed at an individual worker or a group of workers.

Bullying needs to [00:01:00] be repeated. One incident won’t amount to bullying. it needs to be unreasonable behavior, and it also needs to create that risk to health and safety.

you can sometimes have low level unreasonable behavior, that’s occurred on more than one occasion, but it might not create a risk to health and safety. And so it won’t therefore amount to bullying. We do see that bullying is a word that is bandied about in Australian workplaces more frequently but often complaints that fall short of the actual definition. it’s really worth both employers and employees understanding what the definition of bullying is.

Okay. So can we unpack this with some examples, into three components, repeated, unreasonable and risk to health and safety. One incident isn’t repeated, two or more is, or is it, really quite consistent behavior?

No, just more than one. certainly a single occasion won’t be enough to make the definition.

What would be some [00:02:00] examples?

Unreasonable behavior could be, for instance, if a manager is providing feedback in an aggressive way, standing over the individual. It’s overbearing in terms of presence, gesticulating.

And using poor language. there are reasonable ways to convey feedback, direct, polite and respectful starting to get into territory that, the behavior, the delivery, and perhaps even the words used, are unreasonable that would be, on more than one occasion, starting to get towards the definition of bullying.

And we’ll probably get into this more later on but if you’re going through a performance management process which is involving meetings on a fortnightly or monthly basis to work against a plan. an employee might take license that’s repeated.

Yes.

Then it’s up to her interpretation as to whether it’s unreasonable or reasonable the employee might think it’s unreasonable, and the employer might think it’s quite reasonable.

often when we get these sorts of complaints it’s very much a situation of [00:03:00] perception by the employee making the complaint that it’s unreasonable. They don’t agree that they’re not meeting expectations.

it might be the way in which that process is being conducted. it’s important that when we’re looking at the definition of bullying, we understand that there is an express carve out from that definition as to what is not bullying. In a nutshell, it’s reasonable management action.

To the example of performance management or providing feedback, it’s really critical that a manager understands that if conducted in a reasonable manner, it won’t meet the definition of bullying. Your people leaders need to be, equipped to understand how to conduct those processes in a reasonable manner. Of course there will be a variety of ways to do it. we want people to be doing it in a way that suits them as an individual so that it’s authentic but also we need to avoid situations where, people are becoming escalated in their demeanor using inappropriate language.

They’re doing it in the presence of others who can overhear the [00:04:00] conversation, those sorts of things. Really critical that leaders understand that concept of reasonable management action.

Tell me a bit more about that.

Creating a risk to health and safety in a lot of cases around bullying will be a psychological risk to health and safety. it could result in that person experiencing poor mental health. Occasionally it could also result in physical risk to health and safety if someone is distracted by unreasonable, behavior and they’re working in a high risk environment but more commonly we see mental health risks

difficult to quantify, but if it’s something very low level, which, wouldn’t result in someone potentially sustaining a mental health injury, then, less likely it would meet that standard of bullying. But again, we always have to consider the practicality of, does it meet that legal definition?

But even if it doesn’t, is there still something here that we need to address? because if left unaddressed, it could escalate to [00:05:00] bullying, or it could still have ramifications in the workplace.

So from the cases that you’ve worked on recently, give me some examples.

For instance, it could be that somebody is being singled out, as being responsible for things not going well. They’re being targeted if a number of employees are working on a project and one individual is always the scapegoat for things not going well.

This has been, delivered in an open forum in front of the team. can involve, escalated language and, someone being very aggressive in delivering that feedback, We can also see other situations where it’s more subtle, where the bullying is from peer to peer.

it’s someone who’s being left out of interaction. it might be social interaction. Someone’s being, avoided or left out of, invitations and those sorts of things. And there’s a bit of back channeling to keep that person at arm’s length. that’s not to say people can’t have friendships.

In the workplace they might want to go [00:06:00] and have a cup of coffee with a friend but it’s where it is, quite insidious. That person feels they are intentionally on the outer and being, ostracized from the group, it’s not always the huge, demonstrative type of bullying.

Sometimes it can be far more subtle, but also very damaging.

All of which also correlates to the sort of behavior you see in schoolyards still.

I’m continually surprised by the number of cases that come across my desk where it does remind me of high school or even primary school,how people behave. Often it’s where these behaviors have started low level and gone unchecked then it becomes part of how those teams operate.

It becomes accepted and then it’s very hard tocrack that and stop the behaviors continuing.

Yeah, and I take it that, web channels, IT, social channels and so on also are a party to that as well as, overt conversations. So many of our conversations are now digital as opposed to face.

it’s something we [00:07:00] saw with widespread remote working becoming the norm at, very short notice when we think back to 2020 when a lot of workplaces had to go remote. We were often encouraging employers to remind their employees that even though we’re doing things differently via chat or virtual meeting, the same standards of workplace behavior continue to apply.

What we often saw was people engaging over chat This can happen over email as well. Meaning can be misconstrued someone might be typing out a quick message because they have to rush off to that next virtual meeting before they home school the child or whatever it might be.

And the person who’s received that message has thought, Oh, they’ve been really abrupt with me. they’re not taking the time. And so it’s that, miscommunication, I guess that can be fraught, I think. Particularly where we’re not having, virtual meeting where you can’t see someone’s demeanor and body language

Certainly that can give rise to some real risks. And [00:08:00] I think also what we’ve seen is these little chats emerging between team members where they have a little bit of a groan about what’s happening in the workplace. And it can about particular individuals, but what they forget is then that’s in record.

And if, someone else became privy to that, that can become very dangerous. It’s the same with social media, that old adage of what used to be the water cooler chat is now. In writing, but far more permanent.

Georgia, should we dig into bullying and how do we handle it, or should we go into the definition of stress, what would you recommend.

Let’s start with bullying and how we handle it and then we can talk about stress. I think with bullying, really important from the outset that organizations have in place. Documented expected standards of behavior. In your policies and procedures, under occupational health and safety obligations employers need to prevent repeated unreasonable behavior that creates a risk to health and safety.

Traditionally bullying has been the purview of [00:09:00] safety obligations. you need to have policies, but we can’t have them just gathering dust on the virtual shelf. there need to be steps taken to educate and inform employees about those expected standards.

So from the outset of employment, conducting training, having it, referred to in your policies and also, your policies referred to in contract of employment. Also making it clear that those policies are not contractual, but employees need to understand that it is important that they familiarize themselves with the policy and abide by it.

having that initial training and refresher training at regular intervals, what we can sometimes see is someone will make a complaint of bullying against a longstanding member of staff. They signed up to the policies when they commenced employment 10 years ago, but there’s been nothing since then.

And that’s not to say we can’t take action, but they’ll say, I haven’t seen those policies no one’s talked about them ever since. So both for legal and practical reasons, we need to be [00:10:00] reinforcing that message. And then, of course, we need to take all complaints of bullying seriously.

If people raise concerns and they’re brushed off that tends to, push things underground. It can have huge mental health impacts on those individuals, but it also creates that environment where people don’t believe that they’re safe to raise concerns. These things can compound as a result

Really important that if someone says, I think I’ve been bullied, then that’s given consideration. It’s not to say that every time someone says that word, we stop everything, engage an independent investigator, at great expense but we seek to understand what that person is complaining of.

We consider substantiated amount to that legal definition of bullying, and if so, what’s the appropriate way in which we can address this?

Let’s walk through an example. let’s say we had Fred and Mary in the workplace, Fred felt Mary was being, aggressive [00:11:00] or assertive to him as her subordinate about his performance. She was publicly telling him that, his performance was crapnot sure why we should be, employing him for the work he’s doing.

Let’s say that happened twice. How would an employer deal with that?

Ideally your policies and procedures would have, a degree of flexibility in terms of how complaints can be managed. they can be managed both on an informal basis or a formal basis. the formal is where you’d investigate it, either internally or externally and informal is where you try to solve the problem between the parties concerned.

when dealing with the allegations against Mary, two occasions. when speaking to Fred, you say, how would you like this Would you be open to us trying to provide that feedback to Mary and saying, you know what she says about it and then trying to engage in some sort of, relationship management process with the two of you.

And it might bethat [00:12:00] could successfully address it. if Mary said, yeah, I raised my voice. I was frustrated, and they were able to move forward after that. However, if it’s a case where there’s a sense that the person has raised those allegations in, retaliation for some performance management happening it might be that you think, we need to escalate this where there are witnesses, those sorts of things.

It’s very much a case by case basis and there can be a lot of, moving parts it underscores the importance of having that flexibility in your policies and procedures, as opposed to you will follow X, Y, Z steps in every single case, because that can become very demanding, and counterproductive to moving people forward.

If you were going with an informal approach, sometimes it can be, you can try the informal and if informal doesn’t work, you need to move to formal. But it depends on, the broader context. If there had been, other complaints made about Mary, it might be[00:13:00] that then becomes a more fulsome investigation, conducted where, you’d speak to Fred, you might speak to someone else who’d raised concerns. once you have those, allegations, formulated, speak to witnesses then put the allegations to Mary and give her an opportunity to respond. After that you then formulate the findings and next steps.

And that’s something that organizations can absolutely do internally, or if they don’t have the internal resources they could have an independent party conduct that process as well.

That’s a good example of a formal process. What are the likely outcomes and, next steps if I’ve gone through the process of, effectively gathering evidence or corroborating the allegations. they’ve started a conversation with Mary, either with somebody qualified or informally independent within the organization, then what? we have a chat with Mary and say, this is what we hear. This is what we’ve seen. How do you feel about [00:14:00] that?

There are a number of different possible scenarios. It’s possible that Mary in the course of being interviewed in the investigation has said, there’s nothing wrong with what I do. They’re never going to get back on track. Why can’t everyone be more like me? I don’t need to change

If that’s the case, the employer might start to think Mary might not be the right person for that role because there isn’t that level of self awareness. We’re not sure if we’re able to provide her with support or training to allow her to have that self awareness. It’s had an impact on not only Fred but other members of the team.

Ultimately weighing up all the different considerations and risks. We think Mary can’t stay with the business. if that’s the case, it’s worth getting some advice on it. Are there risks in terms of escalating her? But if that’s the ultimate objective, there are ways to manage that when you consider the broader risk to the business.

Mary said, yeah, I did lose my cool with Fred and, on reflection, I could have managed the conversations with whoever else [00:15:00] better as well. this is my first management role. I’m struggling in that case, the business is able to give her some counseling or say, you’re not to do that in future, but we’re also going to engage with some training to help you handle these processes and understand your obligations as a leader.

And it might also be that there needs to be some steps to mend the relationship with Fred and the other people in the team. So there might be some ways of doing that through mediation or facilitated conversations where she says, look, I managed that process badly. I’m really committed to working with you going forward.

it might be that Mary’s very much, prepared to cooperate in that way. So there can be different outcomes. But usually where it’s found that Mary has in inappropriate behavior, that could amount to bullying, then at the very least, you’d want to be issuing a warning or some sort of counseling that’s on the record that indicates that hasn’t met the expected standards of behavior and that any further instances of similar behavior or [00:16:00] other breaches of your policies can result in termination of employment.

Making it very clear what the expected standards of behavior are and that there can be real consequences if it’s to continue.

that’s a formal, clear, well communicated warning that this is the last strike.

Yes, correct.

that then leaves the employer free to dismiss if there’s a subsequent breach in policies and procedures.

Yeah, that’s right. really important that you’re documenting this process. you want to have that clearly documented process so that the warning was there. The, potential impact on ongoing employment was articulated clearly, it makes it very clear for Mary when she takes that letter away and looks at it and is able to digest it in perhaps a less confronting situation.

She knows exactly what was discussed, what the outcome has been. in an ideal world, she’ll reflect on that, improve her behavior, and there won’t be any further instances going forward.

Yeah, and that written [00:17:00] artifact, is vital for the employee employees when they go into a performance management discussion or an official warning discussion. They’re partially present in the meeting they’re partially present in three or four other meetings that they’re having with themselves about whether this is fair the ramifications and how they’re going to get on in the workplace after that. Having the written artifact allows her to clearly recall what actually happened, even if she’s not fully present.

I think the same thing happens with people when they’re getting a diagnosis. I often talk about the fact that, they heard the first few words and then it was just noise. And then afterwards, I’ve got no idea what happens. I suspect there’s some parallel there because, it typically elicits a fear response or indignation response.

absolutely.

So that would, that takes us through a sound procedural process the employer when they’re delivering this message should they have somebody independent and should the employee have a support person in the room with them. [00:18:00] If it’s, the imposition of a warning, you don’t necessarily have to have a support person present, unless it’s reflected in your policies and procedures or an enterprise agreement If you were aware that Mary had been going through some difficult things in her personal life and she conveyed that as part of the process you might want to offer it as a sort of wellbeing support. aside from that, it can help to have a note taker and these sorts of meetings for the employer, because the person delivering the information to Mary wants to clearly articulate it. They don’t want to be distracted by writing these things down, but it is worthwhile having, a note taker in the meeting.

I think it can often help. If the person’s been offered a support person and they don’t feel like they’re outnumbered, with a number of people on behalf of the employer. it’s worth considering, but it’s not legally required in every situation. Different for, a termination of employment meeting where if that person’s protected from unfair dismissal, one of the relevant considerations around [00:19:00] procedural fairness is did the person have an opportunity to have a support person present.

And if we were going down the path of an informal process. Which I guess is raising awareness and offering some form of counseling. How would that informal process go?

there can be different iterations, but if Mary had said, yes, I lost my temper, I’m aware of that. It might be a conversation between the two of them facilitated by management where Mary apologizes to Fred and says, sorry that, I lost my temper.

wasn’t my intention and this is how we’re going to help you move forward to address your performance in a more supportive way, and move forward like that. It might be that in the first instance there needs to be more of a discussion with Mary about how she can

It might be that, a number of things are discussed with Mary and they’re confirmed either in a letter or in an email. Just so that she understands what the expectations are, and, that it’s been dealt with informally we expect that it won’t need to be a further formal discussion in the [00:20:00] future.

It’s a bit softer in that respect, but there does need to be a resolution between Fred and Mary, on a practical level to get it to move forward. So that Fred feels his concerns have been addressed.

let’s not forget that Fred has been a repeated drongo, and Mary may have felt frustrated even if she shouldn’t have expressed it the way she did. I suspect we don’t want Mary to feel like she’s the only victim a performance management discussion needs to still be had with Fred.

Yeah.

would you treat that as a separate exercise?

It might be that in the first instance, they have the discussion to resolve the issue of what went wrong on the first occasion. then to say, we’re going to arrange a further meeting where we’ll go through the performance improvement process with you. it might be appropriate in that first meeting to have a third party there.

to act as a buffer because it might be that there’s still a little bit of shaky ground between Fred and Mary. But it’s really important that Mary doesn’t feel like she can’t address the concerns with Fred’s [00:21:00] behavior because he’s raised a complaint. As long as the complaint’s been,addressed and dealt with, they can carry on with reasonable management action.

where does it go wrong?

there can be a number of ways it can go wrong. One is where,someone is being performance managed and they raise a concern and it derails the legitimate performance management process. It can also be where we have, policies and procedures that say we don’t accept repeated unreasonable behavior that creates a risk to health and safety.

But the powers that be don’t model that behavior. there’s one standard in writing, but different in action. Even if there are concerns raised, nothing gets done about them, or if it does, it doesn’t change anything. sometimes it can be just ignoring complaints because they think it won’t change anything or that person’s just having a whinge.

And that’s only likely to escalate things and either that person might leave. But then the next person who comes in will be subjected to the same behavior. I think it’s so important [00:22:00] once again that we do address all concerns that are raised, but again, taking a case by case, consideration of how it’s best to address it.

Is there a role for WorkSafe?

WorkSafe can investigate or complaints can be made to WorkSafe,on the basis that there has been bullying in the workplace and therefore the employer’s not meeting its occupational health and safety in terms of risks to psychological health and safety, it’s very much on WorkSafe’s radar in their 2030 plan, the things that they’re resourcing, their teams, their inspectorate, they’re looking at risks to psychological health and safety. if complaints are made, there might be some inquiries made of the employer. It might even be that they have a visit from a WorkSafe inspector. questions may be asked, they might ask to see policies, and it doesn’t mean you’re going to end up in a prosecution by WorkSafe.

Usually we only see those in very serious cases. there have been, examples of that. [00:23:00] But in a lot of cases, WorkSafe wants to assist the employer to better, protect employees from repeated unreasonable behavior. that’s, putting in place better policies, better training, there might be an improvement notice. which is a lower level enforcement action that says you need to do these things that you’re not currently doing. the regulator can play a role but in an ideal world, we’d be avoiding having the third party come in because,for the employer’s perspective, that puts that employer on the radar of WorkSafe.

There’s a record of that. if there’s continued issues, that can push, WorkSafe towards,greater enforcement action. on a practical level, it’s not always great to have the safety regulator telling the employer what to do that can lead to distrust.

Sometimes it’s necessary. if an employer’s doing mostly the right things,bullying might still occur because human beings are human beings. to get people moving forward and [00:24:00] working collaboratively it’s probably more effective that it’s dealt with within the employer as opposed to having that third party come in.

Okay. what’s the, impactemployment constructs such as if a person is a subcontractor or a contractor, or just a service provider that’s been brought into the business. One of the staffers is consistently frustrated about, supply chain issues or something like that. And I have a go at a subcontractor. Is that acceptable because they’re not an employee?

The safety obligations in each state and territory broadly accept a broader definition of worker or employee. It’s not just direct employees. It could be labor hire workers. contractors, subcontractors and the like.

There needs to be respectful engagement,in any case. if WorkSafe was looking at this, they’d say, it’s not a big deal because it’s a contractor. It would still potentially give rise to a breach of [00:25:00] obligations if bullying was directed at someone other than a direct employee.

certainly that should be reflected in the policies. It should be reflected in how,leaders are engaging with,contractors and labor hire staff that should be the expectation of everyone in the workplace. similarly, we want, contractors or others coming into the workplace engaging in appropriate behavior

if they’re not, then that should be, addressed. if it’s a subcontractor, then it should be addressed. To the head contractor if it’s not satisfactorily resolved that could impact the engagement of the contractor.

final question, around this issue is, external parties,creating a bullying environment. So perhaps employee groups, wanting to, identify the benefits, and disadvantages of being part of an employee group, how does that,unravel? From the employment situation.

if a union, group decided they didn’t want to work alongside non unionized [00:26:00] labor,are there protections for both the employees and the employers?

Yeah. So there’s a few issues that play there. Certainly. if, union members were refusing to work with non union members, there’s an issue in terms of freedom of association. there are protections under the fair work act where,Someone can choose to be a member of the union, but also someone can choose to not be a member of the union and you can’t discriminate against someone because they’re a member of the union or otherwise.

sometimes an overlap with unreasonable behavior taken on the basis of a protected attribute. So someone is bullying another person because they haven’t been, joining the union that would be a cause for real concern.

it would be quite a difficult process to manage where you’ve got, a core group, engaging this behavior against another group. difficult to mend those sorts of things, but absolutely worthy of, considering disciplinary action where that’s happening, it would be the employer’s obligation to address that because [00:27:00] that’s discrimination in the workplace.

It’s unreasonable. It gives rise to a health risk to health and safety. So yes, it would be, a much greater risk for the employer not to address that. I understand there are certain industries where this is a very real issue. sometimes to the extent that you don’t even cross the threshold, unless you’ve, joined the union,

there’s the legal side of it. And then there’s the practical side, but certainly, just because, it’s the expectation that people join the union and where it’s happening, and there’s unreasonable behavior, it should absolutely be addressed.

And have you said, something similarwith regard to those who are vaccinated and those who are vaccine hesitant?

absolutely. in some jurisdictions where there are not the same degree of mandates we’re seeing it more because it does create factions particularly where people are outspoken.

That they should be vaccinated or their hesitancy, can create those sorts of ripples. unless someone has a [00:28:00] medical condition, that means they can’t receive a vaccination in most cases, there’s not going to be, unlawful discrimination.

If someone,said something on the basis that person hasn’t been vaccinated. it could give rise to bullying, depending on how they go about it. since the, vaccination has been far more widespread in workplaces, we’ve been encouraging employers to consider that and to remind employees that, for some people, vaccination is not an easy decision to make.

And we have to respect differences of opinion. there’s concerns around people’s health and safety and not wanting to contract, COVID 19 in the workplace, but we have to engage respectfully with one another. in terms of having discussions around the merits for and against,probably better in a lot of cases not to engage in because it can become quite fraught as we’ve seen in the community more broadly.

So anything else we need to cover on bullying this is a natural segue into the stress [00:29:00] discussion.

the only other thing worth mentioning is that there is a jurisdiction in the Fair Work Commission where employees can apply for a stop bullying order. the Fair Work Commission will usually deal with it in a private conference, to try and resolve the matter between the parties.

if that’s not resolved, it can go to a full hearing. And in that context the Fair Work Commission will consider has there been bullying behavior. So they’ll look at that definition of repeated unreasonable behavior that creates the risk to health and safety and they’ll consider is there a risk that the behavior will continue.

And if so, they can issue an order requiring that the bullying stop. that the employer has to,take steps might be that a particular individual needs to cease that behavior. but what is quite important to note is it’s not a jurisdiction where monetary compensation can be awarded.

unlike an unfair dismissal or a general protections claim those claims,can only be dealt with by [00:30:00] that sort of order.We don’t see them happening as frequently. it’s really where, an employee feels that might result in behaviors improving and then being able to continue in employment.

So we don’t see them that commonly. Sometimes those claims are made by people who have already ceased employment. in that case, there’ll be a jurisdictional bar because the bullying behavior, if there was found to be bullying, can’t continue because they’re no longer there. But it’s just worth being aware of.

they do come in from time to time and they’re probably less, familiar sorts of claims because they don’t get made that often.

Look, that, is really quite clear. Although there’s plenty of, room for interpretation. Good resources on dealing with bullying would be, Fair Work Australia.

Most likely, starting with, the safety authority in your state or territory. So in Victoria, that’s WorkSafe. They certainly have some, readily available resources. when we start to look at [00:31:00] psychological safety in the workplace

There’s also the Heads Up website, which has a lot of practical resources for employers to look at looking after psychological safety in the workplace. bullying is obviously an important part of that.

HR Legal provides webinars on how to handle those sorts of things.

So

and interpretations.

We can provide template, policies around, bullying and other types of inappropriate workplace behavior, complaints handling. We also conduct training for leadership around, how do you manage appropriate workplace behavior so that your leaders understand what are the legal protections and how do we manage concerns that are raised?

Additionally, we conduct training for the broader workforce and appropriate workplace behavior,that talks more about what are the company expectations. So it’s tailored for that particular environment. we also conduct training around, reasonable management actions so that Your leaders understand how to conduct those processes.

the risks [00:32:00] associated with them? And how do we manage those risks while still being able to push forward with your disciplinary action or performance management or whatever it might be?

That sounds essential for people, particularly as I move up through the ranks and take on more managerial, responsibilities. Many times, particularly with smaller organizations, they’re definitely learning on the job.They’re learning from the experiences they’ve had with their previous managers, good or bad.

So actually having some practical experience bounded in good practice would probably be very helpful.

Absolutely.

This will be a good way to shift gears. All right, Georgie, so let’s talk about stress. There’s no shortage of that over the last few years, both in the workplace for employers and employees. How do we handle and address the issues around stress in the workplace for employers and employers?

Certainly the last couple of years have been challenging for everyone. No one’s been immune from [00:33:00] that. it’s really shone a spotlight on the importance of an employer taking steps to provide and maintain, so far as is reasonably practicable, a safe working environment from a psychological perspective.

So we have that or obligation on employers in all jurisdictions.Some jurisdictions they’re referred to persons conducting a business or undertaking. generally that’s, your employers. And when we’re talking about safety, it’s always been the case that includes both physical and psychological safety, up until the last 10 years, Most organizations were solely focusing on physical, as we’re becoming more attuned to health in our community, it’s understood that, employers need to be taking steps.

In some jurisdictions safety authorities are releasing codes of practice in terms of the steps that employers should be taking around managing mental health in the workplace. I’m a lawyer, not a clinician.

I’ve conducted workplace training with a mental health practitioner Stress is not a [00:34:00] diagnosable condition. It’s something we all experience. in some cases, stress can be a positive thing.

It’s what mobilizes us. makes us, work effectively and get things done. sometimes the deadlines but where stress can become a problem is when it’s unreasonable levels. It’s sustained, and that can potentially result in someone developing a mental health condition.

a lot of people use the word stress when they’re making complaints around what they’re experiencing in the workplace. sometimes we see workers compensation claims being made where the person is citing workplace related stress. that’s a very commonly used term, but it doesn’t mean necessarily that they have a diagnosable condition and only a mental health clinician, can make that decision or at least a medical practitioner.

So where someone is, using the term stress at work, we do need to pay attention. it might not be that they have. a [00:35:00] diagnosable condition at that point in time, or that they are at risk of making, a workers compensation claim, but they’re obviously, not doing okay if they’ve raised that, particular word or that, there’s something that’s not going so well.

So it’s worth sitting up and paying attention and, having a conversation with that person about what’s going on. It doesn’t necessarily mean that, if they say, we’re approaching end of financial year, we’re trying to get all the accounts done and everything out. And I’m feeling stressed.

Now, it doesn’t mean that we’re going to say, okay, everyone stop, we’re not going to finish what we need to do before end of financial year. But it might be that there are some additional supports that team requires. or you need to provide some light at the end of the tunnel when we get to the end of financial year, these are the things we’re going to do.

there’s going to be a celebration. And also we’re going to be giving everyone, a couple of hours of time in lieu or whatever it might be that keeps that person going. it’s not always the case that if someone’s talking about [00:36:00] stress, there are going to be huge changes or ramifications for that, but we need to listen.

And I think often when people raise stress, it can be, very much brushed aside because, people just think, we’re not, paying attention to that, and it’s when things are left unaddressed that they’re likely to escalate. what’s really important is that, employers understand their obligations around managing mental health in the workplace, and that they’re providing support to leaders to be able to understand what are the red flags that someone’s not doing so well.

and how do we conduct conversations at an early stage. To provide practical workplace supports, and referral to an employee assistance program or something of that nature, that means that person is able to have some practical strategies to manage what’s, going on, but also continue to be engaged in the workplace in a meaningful way.

traditionally, we shied away from these conversations in the workplace because they felt [00:37:00] uncomfortable. it was personal and in some environments, it was Come on, soldier on. We don’t want to hear about that. Don’t be soft

I think now it’s far more commonly accepted that we need to pay attention to this because leaving aside the legal ramifications and the potential ramifications for that individual personally, if their experience isn’t addressed, they don’t get the support they require. it’s going to create headaches for the organization.

If that person leaves or goes on long term leave in terms of productivity and those scenarios. it’s worth having your leaders skilled to conduct these conversations. They’re not required to. diagnose or treat someone. stress isn’t a diagnosis, but it could be a flag of something else

they do need to understand how they can support that person to keep that person at work and encourage that person to get, professional support if that’s something they require.

Yeah, I know that sometimes people say, go off and see a GP, which usually leads to a minimum two week, sick leave certificate, which, [00:38:00] in some cases isolates the employee from their support network at work. we don’t normally do that with people who’ve got physical injuries.

as employers, what should we be guiding our employees to do if they are feeling overt stress or they feel that the stress is becoming, very difficult and potentially debilitating?

Yeah, if it’s getting to that level, then it’s potentially not going to be a safe place for that person to be at work. it might be that they had a pre existing condition, or something else in their life that’s contributed to this.

in a lot of cases, work contribute to good mental health. if it’s really escalated and that person isn’t coping, sometimes there does need to be some leave taken for them to get support and then to encourage them back to the workplace.

What it looks like for each individual will be different, but, if we’re trying to identify those early warning signs and have conversations earlier, hopefully we avoid getting to that stage. If we’re at that stage, though, it might be that person needs to take some [00:39:00] leave, and, actually get some professional support.

And then it’s about. really try to keep in touch with that person in a respectful way and to encourage them back to the workplace as soon as possible. so much of this is about how it’s conveyed on behalf of the company. we have to recognize this is challenging to manage as a leader and it can be draining and bewildering

And there can be that flow on effect for that person’s mental health. So that’s a component of your mental health strategy and having that support for leaders who are conducting these processes, or conversations. whatever that person is going through is very real for them.

We need to convey that. support you to do what you need to do to look after yourself, but also to come back when you’re well enough. The longer someone’s out of the workplace, whether it’s a worker’s comp claim or a personal mental health condition, The harder it is to get them back if there are contributing factors where they have alleged workplace factors contributing to their condition and [00:40:00] those factors are still at play when considering return to work that can be a real barrier.

So trying to maintain the lines of communication can be really important if that relationship with their leader Is a good one, that can enhance the prospects of getting that person back to the workplace in a meaningful way, which, as long as they’re well enough to be working is going to be a win for the organization, because that person will feel supported, they’re more likely to be loyal and productive, because they felt that support.

you don’t have issues of. potential turnover of staff, recruitment, cost training, retraining, all those sorts of things.

one option might be to, as we would with anybody kept returning to work, it would be to offer them lighter duties, Yeah,

Or as a substitute for them taking time off,

If there’s a workers comp claim, that’s a requirement to provide suitable employment, which might be modified duties and hours. if it’s not a workers comp claim, it’s not a legal obligation. If you’re [00:41:00] able to offer it, that’s incredible. in a lot of cases, someone requires that graduated return to work rather than one extreme to the other.

We’ve got to recognize it won’t always be sustainable depending on the organization, its resources and what have you.it can be a really, effective way of getting that person back into the workplace the workplace can put parameters around it and say, we’re happy to do that for X many weeks, but after that, we need you back.

At full steam ahead, we want to take a collaborative approach and have those parameters so that if that person isn’t able to come back to full capacity within a reasonable period of time, then you might have to consider your options at that stage.

which might result in a change in job description and remuneration.

Yes,

one of the things that often pops up is that when somebody is being performance managed, they find it stressful

Yes.

we address that we stop doing this performance management thing and let it ride.

it can be deployed in that defensive way when someone’s being performance managed. if someone’s being performance managed and I [00:42:00] don’t find it stressful, then you’ve got real concerns about, are they going to take the feedback on board because it is confronting.

To have concerns raised about your performance, someone’s naturally going to worry about their job security and their perception within the business, that necessarily carries a level of stress. It’s only a concern if you start to think, is there an issue with how that process is being conducted?

So is it not so much that they’re being performance managed, or, concerns are being raised, but how those concerns are being raised and, whether that could contribute to, frustration of the process, because that person won’t be able to engage in it if they’re unduly stressed or, it actually resulting in a mental health condition.

you should be able to continue with that process. I think a lot of the time it’s about addressing the concern they’ve raised, acknowledging it and saying, we understand these processes can be confronting. It’s really important that we engage in them so that we can try and support you to meet our expectations.

as a parallel to that, [00:43:00] you can have conversations about that person’s, being and let them know about the workplace supports available like an employee assistance program. But I guess the underscore is that we’re still continuing with this process, and it’s not going to derail it just because.

if someone then tried to escalate that and make a workers comp claim saying that, I’ve been performance managed and it’s resulted in me sustaining a, mental health injury, part of that, jurisdiction is. If it’s arisen in circumstances of reasonable management action, then in a lot of cases, it won’t be a compensable claim.

So if someone made a claim like that, the employer would be, encouraged to put to its agent that, this person’s been performance managed. We’ve conducted this process in a reasonable way don’t believe it’s compensable. usually the agent will have a investigator look at it.

potentially the claim will be rejected. That can present issues in [00:44:00] terms of continuing in that scenario and relationship. in some cases, the person will just cop it on the chin just because the person made the workers comp claim doesn’t mean we say, let’s not continue with that performance management because it’s too hard.

You can still go ahead with your reasonable management action. But where someone has raised concerns, it’s worth thinking how can we provide them some wellbeing support so they can engage in this process and we can all move forward.

where might we find this well being support?

There are a lot of ways and a lot of it will depend on the resources of the organisation. in an ideal world, at the very least, There will be people in the organization who are to provide these supports and, conversations. we’re not providing counseling service through our managers

I don’t, advocate for that. that can lead to mental health issues if leaders are taking on more than they can manage, it’s about, is there an employee assistance program that means the employee can pick up the phone [00:45:00] and talk to a, third party who’s trained to have these conversations.

Are there sorts of supports we can provide within the workplace where that person has, more frequent meetings with their manager to help them improve or is there a buddy who can train them on things.

Other organizations will have trained mental health first aiders who are not necessarily managers. They can be people at all levels of the organization who are trained to have confidential conversations with someone who’s not doing well and to give them, ideas of where they can get professional support.

So it’s very much like physical first aid, but for mental health you can provide resources through organizations like the Black Dog Institute, Beyond Blue. They have fabulous workplace resources that are freely available. So making them, available online, but also physically in the workplace, those sorts of things.

what. you implement will depend on, what suits your industry, workplace demographic, all sorts of things. what will work in an office [00:46:00] environment might not work on the construction site.

it does very much have to be tailored, to suit your workforce so that people engage with it.

Where does it go wrong?

I think it goes wrong when people don’t want to hear it. what tends to happen there is that person internalizes it, doesn’t want to raise any more concerns because they don’t think they’ll be heard. It will likely escalate, which means they may make a worker’s comp claim, be absent on leave for a considerable period of time, or leave the organization.

what it can also lead to is a broader, culture of, a mentally unhealthy environment where people feel they can’t raise concerns or see where someone hasn’t been well supported. impacts how they engage in the organization and how they trust their employer.

certainly, Early intervention is the key. If you have those conversations at an early stage, it’s far less likely it will escalate in that manner.

Excellent Georgie. Thank you so much for your time. anybody [00:47:00] who’s looking at, issues of bullying or stress, from a claims perspective should always seek good legal advice. HR legal would be more than happy to do that.

Thanks so much for having me.

All right, Georgie, let’s adjourn. Thanks so much for tolerating my appointment this morning.

Oh, no worries at all.

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