MENTAL health issues may arise in employment and can intersect with workplace safety, performance management, disciplinary processes and termination.
Work-related factors such as workload, working hours, role clarity, workplace relationships, lack of support and bullying or harassment may also create psychosocial risks.
The Department of Occupational Safety and Health’s Guidelines on Psychosocial Risk Assessment and Management at the Workplace (PRisMA) 2024 provides a framework for employers to identify, assess and manage such risks.
The Gopal decision
In Gopal K. Veerappan v Gala Track Sdn Bhd, although the claimant’s constructive dismissal claim was dismissed, the Industrial Court considered the employer’s obligation to provide a safe working environment in the context of mental health and psychiatric injury.
The claimant resigned after an incident in which he alleged that the company’s executive drector had shouted at him and told him that he did not want to see the claimant in the office again.
The claimant contended that his resignation was involuntary and referred, among other matters, to what he described as “toxic office politics” and a hostile working environment.
The Industrial Court rooted the employer’s duty to provide a safe and secure working environment in the implied term of mutual trust and confidence. It is observed that this duty is not confined to physical safety but may extend to the protection of employees’ mental health and against psychiatric injury.
Referring to Hatton v Sunderland, the court noted that an employer may be liable for psychiatric injury arising from workplace stress where such injury is reasonably foreseeable, applying ordinary principles of tort.
In the employment context, a failure to protect an employee’s mental health may also, in appropriate cases, amount to a fundamental breach of the employment contract.
The court further observed that persistent hostile conduct in the workplace, including conduct which humiliates, marginalises or intimidates an employee or otherwise, can create a hostile or oppressive working environment, undermining the implied term of mutual trust and confidence.
Where such conduct is sustained, deliberate or sufficiently serious and remains unaddressed, it may render continued employment untenable and potentially support a constructive dismissal claim.
On the facts, however, the claimant was not able to establish his allegation of “toxic office politics” or a hostile working environment and failed to provide sufficient evidence.
The Gopal case demonstrates both sides of the issue: mental health may form part of the employer’s workplace safety obligations but allegations of hostility, psychiatric harm or breach must still be supported by evidence.
Psychosocial risks
Section 18B of the Occupational Safety and Health Act 1994 requires an employer, self-employed person or principal to conduct a risk assessment in relation to safety and health risks posed to people who may be affected by the undertaking, and to implement risk controls where required.
The PRisMA Guidelines 2024 provide guidance specifically on psychosocial risk assessment and management. It identifies workplace factors which may give rise to psychosocial risks, including excessive workload, unrealistic deadlines, poor communication, workplace conflict, lack of social support, limited job control, unclear roles, bullying, harassment, discrimination, inflexible schedules and long working hours.
The framework involves identifying psychosocial hazards, assessing and prioritising the risks, implementing controls and reviewing the effectiveness of those controls.
Workplace stress does not, however, automatically give rise to legal liability. Performance discussions, deadlines and managerial supervision may involve pressure without amounting to a breach of duty.
Mental health and performance management
Mental health issues may also arise during performance management. Lim Fang Xin v Australian Trade & Investment Commission provides an example.
The claimant alleged that workplace confrontations and her relationship with her supervisor caused significant stress and affected her mental health. She informed the employer that she was experiencing mental health issues and produced a referral letter.
The employer maintained that support had been provided, including access to employee assistance and a conflict resolution specialist, and that it had concerns related to the claimant’s performance and conduct.
The Industrial Court found the dismissal was without just cause or excuse because the employer had not established the alleged poor performance on the evidence.
The decision does not mean that an employee who raises mental health issues cannot be subjected to performance management. It illustrates the importance of ensuring that the reason relied upon for dismissal is supported by contemporaneous evidence.
Where a mental health issue is disclosed, the employer should consider whether it is relevant to the performance concerns before a final decision is made.
Risk assessment, foreseeability and documentation
The High Court’s decision in Intan Shaharzad Mohd Azri & Anor v Kerajaan Malaysia & Others also illustrates the role of risk assessment, workplace accommodation and foreseeable harm.
The case concerned a healthcare assistant with a high-risk pregnancy who requested lighter duties. The court found that no appropriate risk assessment was conducted after her pregnancy was disclosed.
She subsequently suffered a miscarriage and was diagnosed with moderate depression. On the medical evidence, the court held that the miscarriage and subsequent deterioration in her mental health were not only foreseeable but an expected risk, which medically trained supervisors should have anticipated.
The emotional toll of a miscarriage and the psychological distress which followed were treated as foreseeable consequences of the failure to address her request for workplace accommodation.
The facts of Intan Shaharzad concerned pregnancy-related occupational risks rather than an ordinary workplace stress claim. Nevertheless, the decision is instructive where an employer is aware of a health-related vulnerability or risk. It underscores the importance of assessing known risks, considering appropriate workplace accommodation and documenting the measures taken.
The court’s reasoning also demonstrates that psychological harm may be compensable where the evidence establishes that it was a foreseeable and direct consequence of an employer’s omission.
Records of the information received, assessment undertaken and measures implemented may become important if the employer’s response is later challenged.
Practical considerations for employers
Where performance, misconduct or medical incapacity issues are being considered, the employer should identify the basis of the process and maintain appropriate supporting records.
A mental health disclosure should be considered where it is relevant to the matter being addressed but it does not by itself determine the outcome of a performance or disciplinary process.
Nalina Santhiran specialises in employment law, advising employers on workplace disputes, dismissals, disciplinary matters and restructuring, and representing companies in court. Comments: letters@thesundaily.com