What is it and what am I entitled to? What are the obligations of an Employer?


Stress can broadly be described as a state of mind or emotional feeling of strain or tension, often resulting from adverse or demanding circumstances.  Typically, employees experiencing difficult levels of stress may feel unable to cope with their workload, feel a lack of control over their work or tasks and have difficulty regulating their emotions. In more extreme cases, this may have physical manifestations including headaches or changes in mood.

More serious cases of stress that require an employee to take time off work are becoming increasingly more common in the current COVID-19 era. The COVID-19 pandemic has changed society in many ways, in addition to added emotional and financial pressure, COVID-19 has disrupted our traditional ways of working. For many people, the working from home environment has created a greater sense of isolation and lack of support and there has, unsurprisingly, been an increase in requests for stress leave. 

What is stress leave?

In Australia, there is no separate mental health or stress leave category. Under the National Employment Standards, an employee may take leave from work for personal reasons, this includes leave to recover from a mental or stress related illness.

Stress leave, as a concept, is to be dealt with by an employer in the same manner in which they would take personal leave for any other type of illness (i.e. broken bone). A full-time employee is entitled to 10 days of personal leave per year.

Employer’s obligations with respect to stress

Prevention is the best cure. It is important employers are aware of their WHS obligations in this area. Employers must, in so far as is reasonably practicable, ensure the health and safety of their employees. This general duty of care extends to an employee’s psychological safety. Specifically, it is important employers implement their WHS policies and procedures in ensuring that risks posed to mental health are correctly identified, assessed and managed/mitigated.

Employers should, where possible, avoid generating situations that may cause a stress related illness or mental health condition in their employees. This extends beyond the low-level stresses that come with any role (such as busy periods of the day or meeting tough but achievable deadlines). In particular, employers should have policies in place and ensure managers are trained in identifying unhealthy levels of stress or early warning signs of employees who are struggling.  In some cases, this may also involve managing the environment or ensuring issues such as bullying complaints are dealt with efficiently and correctly. Such preventative action may prevent a workers compensation claim for psychological injury.

If any employee has taken time off due to a stress related illness, employers and employees should work together to manage the return to work and support the employee in maintaining their health in the transition. This may include additional support, shorter days, assistance with task management or regular check-ins.

Prolonged absences or circumstances that prompt an employer to consider termination, should be carefully and sensitively dealt. The Fair Work Act 2009 (Cth) deals with what is considered a temporary absence for the purposes of the dismissal of an employee. An absence is no longer temporary if it extends beyond 3 months or the total absences within a 12-month period have been more than 3 months.  However, it is important to consider the issues on a case-by-case basis and ensure all relevant factors including whether personal leave has been taken or a workers compensation claim has been lodged before an employer takes any action so as to avoid any claims the employer has taken an adverse action against an employee by reason of a temporary absence from work due to illness or injury.

If you require assistance, Adams & Partners Employment Law Team can help you. Contact us on (02) 4721 6200.

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