Legal perspective: How to eliminate stress and minimise burnout

Hospitals are on the brink of a mass exodus of senior nurses suffering trauma and burnout from overwhelming workloads according to multiple reports.

Younger, less experienced nurses will likely step up to fill the vacancies left by their former colleagues, but consequently be at greater risk of abuse from upset patients, fuelling an unsustainable cycle.

A report¹, commissioned by the NSW Nurses and Midwives Association earlier this year, found nurses had borne the brunt of the overwhelming pressure on the New South Wales healthcare system.

The survey of more than 2300 nurses found more than half (58%) plan to resign from their current position in the next five years, while 15% of nurses and midwives reported having high levels of post-traumatic stress symptoms that would meet the criteria of PTSD. A third (37%) of nurses planned to resign in the next year, with one in five intending to leave the healthcare sector altogether, the report found.

This snapshot of New South Wales is consistent with a national survey undertaken last year by the Royal Australasian College of Physicians which found 87% of doctors were experiencing burnout, and supports research by the Australian Medical Association undertaken during the COVID-19 pandemic, which found 57% of healthcare workers were struggling with depression.

Clearly, there is a major issue, but what should hospitals be doing legally to help eliminate stress and minimise the likelihood of burnout?

New legislation recently introduced sees every Australian business, including hospitals and every workplace manager, obligated to eliminate tasks which could trigger work-related stress.

For the first time, businesses must identify and control psychosocial risks in the workplace, which could have a negative impact on a nurse, doctor or healthcare worker’s mental health.

So, what does the legislation mean, particularly for nurses, doctors and carers working in high-stress environments where decisions are literally life and death?

Hospital and healthcare bosses must demonstrate:

• deadlines are reasonable;
• the tools, equipment and support provided to perform the role or meet deadlines are adequate;
• menial tasks outside of the job description are a regular feature of work;
• distribution of work and capacity;
• observation of resilience (or lack thereof); and
• sufficient workplace training.
   

The new laws also mean hospital and healthcare managers must consider:

• the duration, frequency or severity of the exposure of employees to psychosocial hazards;
• the design of work;
• the systems of work;
• the design and layout and environmental conditions of the workplace, including
  • safe means of entering and exiting the workplace; and
  • facilities for the welfare of workers;
• the design and layout, and environmental conditions, of workers’ accommodation; and
• the workplace interactions or behaviours.
   

With a high proportion of healthcare workers struggling with their mental health, managing mental illness, anxiety and depression in the workplace has never been more important.

When dealing with disclosure of mental illness in the workplace, from an employment law perspective, it can generally be categorised into three areas:

• Disclosure of mental health issues either involving work or not involving work;
• During a performance management process; and
• During an investigation and misconduct proceedings.

Disclosure of mental illness

According to SafeWork NSW, 91% of workers compensation claims involving mental illness are linked to work-related stress. So, what should happen when an employee informs their boss they are depressed, anxious or suffering from a mental illness?

The employer’s reaction

It’s crucial an employer’s reaction is:

• measured;
• aligned with the values of the business; and
• compliant with policies and processes of the business.
   

If an employer reacts poorly to an employee’s mental health disclosure, it will present litigious opportunities for the employee, including:

• workers Compensation applications;
• general protections application;
• sexual harassment application;
• workplace bullying complaint;
• a discrimination application;
• an unfair dismissal application (if dismissed); and
• breach of contract.
   

It’s essential, appropriate and reasonable adjustments are made to the employee’s workload and suitable support is provided, including fewer hours worked or time off if necessary.

Employers must also consider if an employee’s decision to disclose their mental illness may lead to issues under Workplace Health and Safety legislation. In particular, whether the mental illness will have the effect of endangering the health and safety of the employee or others in the workplace, including patients in a hospital setting.

Performance management

Another prevalent issue many hospitals and healthcare leaders face is the process of performance management following an employee’s mental health disclosure.

Performance management can be summarised briefly as:

• discussing performance issue with the employee;
• discussing the standard of work;
• discussing the shortfall (if any) and giving the employee the opportunity to respond;
• what improvement will be required and setting that out in a potential performance improvement plan; and
• the timeline for improvement.
   

Employers are (justifiably) timid in taking performance management action against an underperforming employee if they have disclosed a mental illness.

Practical terms

These are two separate issues. Mental illness and disclosure and performance management must be managed separately. I always recommend to clients they have two separate meetings and avoid crossover. What can be helpful in the performance management of employees in these circumstances are solid policies and processes which set out:

• expected standards, behaviour and conduct;
• conditions of employment;
• statements of purpose; and
• unique and/or “unspoken rules of the organisation”.

Misconduct

The last situation where complaints around mental illness potentially become a problem are during an investigation or misconduct proceedings, specifically when an employee engages in alleged misconduct, including:

• failing to follow a reasonable and lawful direction;
• theft;
• fraud;
• disclosing confidential information;
• bringing the company’s reputation into disrepute;
• engaging in workplace bullying;
• sexually harassing a fellow employee; or
• assault.
   

The normal process to mitigate risk and provide procedural fairness and natural justice is to present the allegations to the employee, so they can explain their actions.

When mental illness is brought up as a contributing factor to the alleged misconduct, it has the ability to derail the process. The recommendation in the majority of cases is to simply slow down and keep the issues separate.

^{1. The report was conducted by the Rosemary Bryant AO Research Centre – a partnership between the University of South Australia, the Australian Nursing and Midwifery Federation and the Rosemary Bryant Foundation.}

*Jonathan Mamaril is a Director with NB Employment Law and leads the Employment Law and Commercial Law teams.

Mamaril advises clients on all aspects of employment law, including enterprise agreements, collective bargaining and interpretation of Modern Awards. He has represented clients in unfair dismissal, general protections and discrimination matters — from the conciliation conference stage, through to arbitration in the Fair Work Commission.

Top image credit: iStockphoto.com/Chinnapong