Pulling a sickie just got harder

By MARK STORY

Workers who "cry wolf" over work-place stress may find themselves in hot water if their employers call their bluff and demand evidence that medical problems really exist, says employment law specialist Andrew Scott-Howman.

Fancy a few days off at your employer's expense? It used to be pretty easy to swing on the strength of a medical note from your GP stating you're too stressed to come to work.

But efforts by employers to minimise their exposure to liability directly arising from workplace stress mean this jig is now up.

Exposure to stress is insufficient grounds for taking sick leave - after all, most jobs have it in varying degrees. Mandates within the amended health and safety legislation require employers to call an employee's bluff in the pulling a sickie stakes.

The need for employees to provide convincing evidence of harm arising from their exposure to stress, says Scott-Howman, partner with Bell Gully, has opened a hornets' nest. Scott-Howman warns if you can't adequately justify the time you've had off under the guise of "mental health leave" you not only risk being exposed as a liar, you could risk losing your job.

The recognition of stress as a (potential) occupational hazard within last May's Health and Safety in Employment Amendment Act has put employers into backside-covering mode. To minimise their liability to legitimate stress-related litigation under the act, employers are required to minimise staff exposure to stress-related harm.

On the suggestion of such exposure, employers must ensure the employee seeks and then acts on the recommendations of an appropriate medical specialist.

"Health and safety specialists are waiting for the right stress-related case to act as a beacon for applying current law in practice," says Scott-Howman. "The fact they haven't found one suggests harm from stress happens very infrequently."

Scott-Howman says employees who use a personal grievance case that includes a work-related stress claim in response to disciplinary matters - as is becoming common practice - may be biting off more than they can chew. He says they have little chance of success unless an expert diagnosis proves convincingly they were incapacitated by stress.

But Victoria University senior law lecturer John Miller argues that health and safety specialists may have been tardy finding the right case because many legitimate claimants of harm from work-place stress are thinking twice about pursuing their cases.

The infrequency with which employment-related problems actually go to court suggests Miller's got a point. In 2000 89 per cent of employment-related problems went no further than mediation. He suspects fear of intense public scrutiny that such cases would attract is preventing many work-related stress cases from coming before the courts.

To Miller it's the classic catch-22: while claimants need to be suitably injured, they also need to be strong enough to endure the added stress of a gruelling court case.

"Any litigation is stressful," says Miller. "Company lawyers will have access to your medical records and they could hire private investigators in an attempt to prove the harm you're experiencing from stress is more attributable elsewhere."

Such dilemmas might be avoided, he adds, if only stress-related claims could be dealt with under ACC. As ACC doesn't compensate for injuries of pure mental harm, the best an employee with a legitimate stress claim can get from the government agency is a sickness benefit.

So assuming you want to resolve stress-related issues with your employer - but lack either the evidence to substantiate it in court or the stomach for the public scrutiny it would attract - what options have you got?

Having concluded that settlement outside court is always the best option for both employers and their staff, Miller recommends employment mediation before anything else.

With mediation now compulsory on employment-related issues, all employer-employee dust-ups go to Employment Mediation Services - a division of the department of Labour dedicated to settling work-related disputes - within three to 12 weeks.

But Scott-Howman urges employers to take a more proactive stance by ensuring they comply with OSH guidelines to prevent harm from stress in the workplace. Revisiting employment contracts to ensure they comply with OSH guidelines is an obvious first step. It's also the job of the employer, he says, to remain vigilant, especially to high rates of absenteeism as they can often flag a cry for help. It's no longer acceptable for employees to claim they're unfit to work on stress-related matters without providing sufficient detail.

Similarly, Scott-Howman says employers must identify within workplace policy what steps will be taken - in response to claims of harm from work-related stress - through appropriate medical tests and identify what will be done in response to those findings.

"The prudent thing for employers to do is incorporate within either a workplace policy or employment contract the need for medical tests once claims of harm from stress are made."