In the last week alone, the world has seen more than 30 people brutally murdered in mass shooting in the USA. In that regard, the American National Institute of Justice has conducted a recent study in which it has examined every shooting incident at schools, workplaces and places of worship since 1999. As a result of the study, it found that in the majority of mass shooting cases, early childhood trauma including exposure to domestic abuse and violence at a young age was a prevalent issue. The nature of such exposure included parental suicide, physical or sexual abuse, neglect, domestic violence, and/or severe bullying. The trauma was often a precursor to the development of mental health conditions, including depression, anxiety, thought disorders or suicidality. To that end, as a society, we need to be more proactive. In our view, proactive prevention starts in schools, the home and especially at the workplace, whereby employers ought to be thinking about ways to have conversations about mental health and domestic violence and at the very least establishing systems for identifying individuals in crisis, reporting concerns and reaching out — not with punitive measures but by making meaningful support available.
The incidence of domestic violence and mental health issues appears to be increasing and is now a much discussed social issue both domestically and internationally. The statistics regarding domestic violence in Australia are horrifying – one in six women, and one in 20 men, have report having experienced violence from a current or former partner since the age of 15. In March 2018, the Full Bench of the Fair Work Commission (“Full Bench”) observed that family and domestic violence is ubiquitous and that such violence not only affects those who suffer it, but the children who are exposed to it, extended families, friends and work colleagues. To that it, it is trite to say that this issue impacts on workplaces and requires specific action.
Within our legal system, employees are now entitled to take 5 days of unpaid domestic violence leave in a 12 month period. This entitlement, unlike other leave benefits which accrue, does not accumulate and resets at the start of each 12 month period of employment. However, on 25 July 2019, the Full Bench handed down a new decision which proposed to revisit the existing domestic violence leave provisions in June 2021, after they have been in operation for three years to consider the following issues:
- whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;
- whether any changes are needed to the unpaid domestic leave entitlement; and
- whether provisions should be made for paid family and domestic violence leave.
Given the insidious and prevalent nature of this issue and the significant impact it can have on the working lives of victims, and as a result of the increasing trend of clients seeking advice on how to manage these issue from a practical perceptive, this article sheds light on why supporting domestic violence sufferers and those with mental health issues, is, in our view, an essential requirement for responsible employers.
However, having the best intentions can sometimes land employers in hot water. In that regard, business’ ought to be cognisant that any request for additional medical information needs to be for a legitimate purpose otherwise the employer runs a substantial risk that the request, and any subsequent detrimental treatment of the employee, may constitute adverse action in breach of the Fair Work Act 2009 (Cth). Similarly, discriminating against an employee experiencing domestic or family violence or mental health issues by either, for example, denying them flexible working arrangements, demoting or transferring them to another area of the business, or terminating their employment, is prohibited under the Fair Work Act 2009 (Cth) and may sound in significant damages award against a contravening employer.
It is equally important for employers to be aware of the legal obligations arising under the Disability Discrimination Act 1992 (Cth) (“Disability Act”) which prohibits discrimination of an employee on the grounds of a disability – including a mental health condition. Accordingly, an employer must offer equal employment opportunities irrespective of an employee’s mental health condition provided they are able to fulfil the inherent requirements of the role for which they were employed or would be able to do so through the implementation of reasonable adjustments. In this regard, for employees suffering from mental health issues, including as a consequence of domestic abuse, often small changes to the working environment will be sufficient to ensure they have access to equal employment opportunities and are not subjected to undue emotional hardship or unreasonable stress at work. Under the Disability Act, an employer is required to make reasonable adjustments with a view to ensuring that an employee with a disability can productively perform the functions of the job. Such adjustments may include, but are not limited to:
- reducing the employee’s hours of work;
- allowing the employee to work flexibly, including remotely or from home; or
- modifying the employee’s duties or system of work, including providing additional resources to assist the employee manage their workload.
Importantly, these laws apply to independent contractors and partners in a partnership.
In addition to the legal requirements arising under human rights legislation, all employers are subject to work health and safety laws, both at State and Federal level, to ensure, in so far as is reasonably practicable, that the health and safety of an employee is not put at risk from work carried out for the employer. In this way, employers ought to keep abreast of mental health issues, and ensure that any employee suffering from mental health issues or domestic violence, has access to appropriate support services, such as an Employee Assistance Program. It is also key for employers to ensure that employees suffering from mental health issues, or domestic abuse at home, are not exposed to bullying, unreasonable job stress or harassment. So far as is reasonably practicable, employers must ensure that such behaviours are eliminated from the workplace. In New South Wales, employers must also consider whether knowledge of a serious domestic violence incident against an employee in their employ triggers an obligation under the Crimes Act 1900 (NSW) to report serious indictable offences to Police authorities.
Apart from legislatively entrenched safeguards, responsible employers will be aware that mental illness and promoting domestic violence prevention is more prevalent than most people realise, and it should not be presumed that it only affects people outside of the workplace. In this regard, ignoring the problem can have a far greater consequence for employers and society at large than the cost of developing and implement appropriate strategies and mechanisms at work. Such strategies should include having policies and support systems in place to create a safe and unthreatening environment where employees feel comfortable communicating openly about mental health or domestic issues.
Some practical steps employers can take to raise awareness of mental health and domestic violence issues include:
- providing appropriate management training to staff and senior business leaders including in how to have conversations that may be difficult or confronting with employees;
- ensure organisational structures are clear, and roles and responsibilities are clearly defined;
- ensure safe working conditions and conduct independent audits to assess compliance;
- communicate regularly and on an informal basis with employees about issues affecting them;
- encourage a workplace culture where employees support each other and are positive;
- respond appropriately to requests for flexible working arrangements;
- monitoring employee absenteeism and workloads to ensure job-stress is minimised;
- recommend medical care to an employee who has disclosed a mental health or domestic abuse issue;
- consult with employees about the creation of a mental health plan (such as a workplace policy);
- review the workplace culture generally to ensure it is collegiate, supportive and responsive; and
- provide access to employees for counselling services or specialist support groups.
After many years in legal practice, what we have come to realise as legal practitioners advising on matters which affect people and human relationships, is that recognising and promoting mental health is an essential part of creating a safe, healthy and positive workplace. Employers, managers and workers each have roles to play in building a safe work environment, one that will not create or exacerbate mental health or domestic problems, but which promotes speaking up and asking for help.
In concluding this article, we ask our clients to consider what their organisation can do to assist employees affected by domestic violence or mental health issues, beyond what the law currently provides?
This may include the introduction of paid miscellaneous or discretionary leave; initiatives designed to reduce the stigma associated with domestic violence; access to employer-funded employee assistance counselling programs; accessibility to flexible working arrangements; and the creation of a supportive and positive culture within the business.
Ultimately, as a global community, it is evident that proactive intervention of domestic violence and mental health issues is a responsibility which falls to humanity in its entirety to manage, and this includes how these issues are managed at a workplace level.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to your employment relations framework, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.