Danielle:

Hi everyone, welcome to today’s session of Pearls of Wisdom. Today we’re going to chat with Rachel Cubela about the challenges of developing a mentally healthy workplace, and the legal issues that are relevant for employers in this space. Welcome, Rachel.

Rachel Cubela:

Thank you, Danielle. Nice to be here.

Danielle:

Rachel, just to give everyone a little bit of background about yourself and tell everyone that you are a senior practicing lawyer with over 24 years experience in work health and safety and compensation law. We know you specialize in work health and safety law, and you’ve previously been in the role of director of corporate legal services for WorkSafe Victoria and senior legal manager at EML.

Danielle:

So, obviously Rachel brings a wealth of experience regarding employers’ rights and responsibilities with respect to mental health in the workplace, so she’s well credentialed to talk to us today. So thank you for joining us today, Rachel, on the Pearls of Wisdom, and we’re very much looking forward to your pearls of wisdom on this topic, as I’m sure a lot of people are. Rachel as we know, mental health is a significant issue for us all. I think in these COVID times and pandemic it’s become even more so and really highlighted the mental health issues and workplaces have certainly got a lot of things to juggle at the moment.

Danielle:

Some of the statistics show that three quarters of people actually say mental health is an important consideration when they’re applying for a job, and a half believe that employers should be doing more in this space. And we know there’s an increasing push [inaudible] for employers to take on responsibility for managing that in the workplace like they do the other physical safety of people. And look, we also know through PWC that the return on investment is roughly like $2.30 for every $1 that employers invest in mental health workplace programs. So I’d love to hear your take on where employers really sit in all this with respect to their legal requirements, and what their barriers and attitudes are. So I guess we’ll hand over to you and really the first main question that I see is, what do you see as the main legal issue for employers that don’t invest in creating a mentally healthy workplace?

Rachel Cubela:

Thanks, Danielle. Look, it is an important topic and it has become more so over the years. So mental health injuries and mental health injury claims have become more prevalent over the years. So I see in a nutshell, the three main issues for employers are injuries, and when I say injuries a mental health condition, however described is an injury and considered as such legally. So, injuries, claims for compensation with respect to those injuries and also common law damages claims, which I’ll touch on briefly what that means, and also occ. health and safety exposure for employers.

Rachel Cubela:

And that side tends to get forgotten, and certainly my main focus in my practice is workers’ comp claims and particularly in Victoria. So I will quote Victorian statistics. But the occ. health and safety side is important. And we have certainly moved in the last few years away from considering those physical injuries where we’re all used to, “Make sure that computer’s are plugged in properly, that no one’s going to trip over the cord or the machine has a guard.” and mental health is now becoming one of the main contributors to injuries in the workplace.

Rachel Cubela:

So WorkSafe Victoria, they have a occ. health and safety arm, we have occ. health and safety legislation in Victoria, which is different from the national legislation, but very similar. So employers have an obligation to maintain workplaces and eliminate or reduce health and safety risks, and mental health injuries is one of those risks.

Danielle:

Yeah. So do you think employers understand their legal exposures in this area?

Rachel Cubela:

I think that we are talking about mental health injuries much more than we used to many years ago and we’re even advertising… The occ. health and safety regulator in Victoria is advertising people coping abuse, for example frontline workers, nurses, shop assistants. It’s running a series of ads at the moment. There’re, again, probably more obvious examples where it’s foreseeable, if someone is on the frontline and they’re being abused from members of the public, that they might have a mental health injury, but the exposure legally is much broader than that.

Rachel Cubela:

So the exposure is to any worker who has an injury arising out of or in the course of their employment. It doesn’t have to be a fault-based injury, the employer doesn’t have to have done anything wrong, and it can also arise from someone’s perception of an incident or something happening in the workplace that other people might say, “Look, I wasn’t bothered by those comments or what happened there, why is this person suffering? Why haven’t they come back to work?” So it is much broader than just the obvious that we’re used to thinking about.

Danielle:

So do you think that bit there, that you just mentioned, it’s about perception, is a thing that employers understand well? Because yes, you can have one incident happen in the workplace and one person’s fine, and the other person considers that to be harassment or inappropriate or whatever. And so do you think your employers really grapple with that?

Rachel Cubela:

Absolutely. And of course, no one… With a broken leg, we can all see the cast or we can all see it’s real, or we’ve seen in the incident. And that’s very difficult for employers to comprehend. Particularly, examples are you might be speaking to a group of people, jokes, things like that, always come out in employment relations contexts, unfair dismissals, things like that. Similar with workplace claims, is that what might be fine to 20 people in the room, and funny or amusing might be upsetting for one person in the room and they might have mental health consequences.

Rachel Cubela:

So it doesn’t matter in that sense, how well the other person thinks the conversation has gone, as long as the conversation happened or at least a semblance of it happened, then the employer can be liable. So perception becomes reality in that sense, because as long… and the law uses old-fashioned terms at times, but as long as it’s not far-fetched or fanciful, as in the person wasn’t even at work at that day and hadn’t been for two months so that the conversation could not have happened at all, then the employer could be liable for the injury.

Rachel Cubela:

And I only know of one case, and that’s the thing with these perception-type cases. I only know of one case which was a commonwealth case where the worker had said that she was at the workplace, it was something like the tax office, I don’t know if it’s the tax office, but some similar, commonwealth government building, and had turned around in the open-plan workplace and seen someone with a bag of drugs on their desk. And she had seen the drugs, the person had seen her see it, and she ran off and they chased her and locked her in a room. And she honestly believed this happened, there were cameras everywhere in the workplace and it was an open-plan workplace and her fellow employees said it didn’t happen.

Rachel Cubela:

And she had a couple of lawyers act for her that then dropped out and she represented herself. And the Administrative Appeals Tribunal said, “We accept she honestly believed this had happened, but there’s just no evidence that it did. The evidence is to the effect that she had a psychotic episode.” And she had a background, if I recall correctly, of someone in her past having died of a drug overdose, so drugs was a sensitive [inaudible] for her. So that’s the only example out of the cases that run day in, day out, where you could say, “That was far-fetched or fanciful.” because it just didn’t happen. So absent that-

Danielle:

So it’s hard [crosstalk] for that.

Rachel Cubela:

No. So absent that though, if the conversation happened or the person was at work and they can point to something in the workplace as having caused their mental health injury, and it doesn’t have to be the sole cause in Victoria, it has to be a cause. If you have a preexisting mental health injury, then the employment has to be a significant contributing factor. But absent that if a person hasn’t had a mental health injury before, then work just has to have contributed or caused that condition.

Danielle:

So employers can’t rely on the, “Well, I know that they’ve been having difficulties at home, they’re going through a divorce, so that’s actually what’s the cause of the mental health issue, not this incident at work.” So they can’t rely on that?

Rachel Cubela:

They can try and rely on it, and that gets down to what their legal liability is. So with claims, for example, if I leave aside the occ. health and safety side. With claims, we have a no-fault system in Victoria and all states in Australia, which means that if you have an injury, again arising out of or in the course of employment, which is a very broad test, then, compensable. It’s a no-fault scheme, and the entitlement then is usually to income replacement, so weekly payments replace your time off work. Medical expenses, so counseling, treatment, medication, GP visits, potentially [inaudible] inpatient treatment and potential impairment benefit, we call them in Victoria, but they are the no-fault lump sums that you can get.

Rachel Cubela:

Then we move to the fault-based system, which sits behind most jurisdictions in Australia but not all, some don’t have any common law jurisdiction at all, but if they do then a worker can sue for damages, which is just a fancy term for money. They can sue for pain and suffering for the impacts the injury has had on their life, they can’t do things they used to, they can’t leave the house or they can’t play with their kids, visit people, they’re suffering, they take medication, those sorts of aspects.

Rachel Cubela:

And then there’s the economic loss aspect, which is based on, “If I hadn’t have had this injury, I would’ve kept working in similar employment or to retirement age.” So obviously the younger a worker is when they have an injury, then the higher that loss claim is.

Rachel Cubela:

So in those cases, the worker does have to establish, well (a) they’re a worker for any of the compensation on common law, that (b) they have an injury and (c) that there’s been an omission or an action on behalf of the employer, which is negligent or that the injury has been intentionally caused. And that can mean from employers being what we call vicariously liable for actions of their employees, so someone, for example, harassing, victimizing, bullying a worker that can prove that the employer was aware of that and turned blind eye or didn’t put in reasonable steps to stop that, then that would be an example of the employer being held. And when I say that, that’s not the individual, it is the employer that by the workers’ compensation legislation and the workers’ compensation regulator covering those costs.

Danielle:

So, Rachel, what are the common injuries that you’re seeing or the common claims that people are lodging when mental health in the workplace hasn’t been managed well? Obviously you talked about bullying and harassment. They lodge a claim for bullying and harassment, or do they lodge a claim for different condition?

Rachel Cubela:

They often lodge for bullying and harassment. If they’re lawyered up, they will usually just make it more broader and they’ll put issues in the workplace. Because they actually, for the no-fault part of the compensation, they don’t have to prove bullying and harassment. And bullying and harassment, again it’s quite subjective. So what one person would say is… they’re feeling harassed or bullied might to another person be usual dialogue, performance management and the like, and all quite reasonable. They don’t actually have to prove that. But most of the times when these claims do come in, there is some sort of interpersonal conflict in the workplace, usually between a worker and their supervisor or direct manager, rather than colleagues, sometimes is against colleagues. So we’ll often find that claims will start off alleging bullying and harassment, but then as they go through the process and they obtain a lawyer, it might change.

Danielle:

It gets broader.

Rachel Cubela:

And they often will start with a particular incident and also in Victoria and other jurisdictions, injuries that happen out of reasonable management action or disciplinary-type action, counseling, performance reviews, promotions, or not getting a promotion, not getting a transfer, being terminated are often exempt from compensation. So that is one of the exceptions to the… arising out of the course of employment rule.

Rachel Cubela:

There’s all rules behind that, but it has to be done in a reasonable manner. So we often have claims where the person has been under performance management, for example, and they will race off to the doctor’s because they’ve had a particularly bad experience in having a discussion. They’ll put the claim in and refer to that meeting, and then the claim will be rejected because reasonable management action grounds have been established. They’ll often go and see a lawyer and will then change to what we call “The straw that broke the camel’s back argument,” where they say “No, that was just… I was being performance-managed because I wasn’t coping already because of this incident, that incident and the incident before it from two years ago.” And there’ll often be a whole-

Danielle:

So that’s interesting, [crosstalk] so they can change even what they’ve originally applied for, so that can be expanded. I’m sure a lot of employers wouldn’t realize that, they’d probably think, “Well, that’s what they put on their claim form, that’s what they’ll be applying for.” So it’s very dangerous once you start getting into that field, isn’t it? Because what can be on that… What can be claimed suddenly expands.

Rachel Cubela:

Grows, and often these claims will be investigated and that’s what will come out. Statements will be taken from the worker, if their lawyers will allow them, often they don’t, and from other colleagues. And what you start… It might seem simple on the claim form someone wrote in the meeting, and ends up being a litany of issues that have gone on for many months if not years sometimes-

Danielle:

What about claims, Rachel, and I’m not sure if you’re seeing more of these come through, but things like burnout. Obviously, particularly in the healthcare system at the moment, we know there’s a lot of overworked doctors and nurses, et cetera, who really… It’s not that the workplace has… there’s individual conflict, but it’s more just hours of work or the risk associated with their work and the stresses around their work. And you call that different things, a lot of people term that burnout, moral injury or different things. But seeing more of that come through?

Rachel Cubela:

I haven’t seen in my end because if they get to my end, because I work in the litigated claims area, it means that the claim has been rejected, because there’s those factual arguments or those reasonable management action arguments. So, I’m not seeing them. That doesn’t mean they’re not out there, but it also might mean that they’re being put in and being accepted. So certainly that’s another area definitely of mental health injury claims.

Rachel Cubela:

The claims that we would’ve looked at years ago, would’ve been the obvious type, which aren’t that common anymore, which are post-traumatic stress or there’s been a serious thing or there’s been a bank hold up. Something very dramatic has happened for someone to then relive that experience. And certainly those claims are there, but the general claim is much more your run of the mill interactions on a daily basis with coworkers or managers.

Rachel Cubela:

So you mentioned some stats before, so I’ve got some stats from WorkSafe Victoria’s last annual report, which as at 30th of June 2021, 22% of injured workers on weekly payments, so that’s the income replacement benefit Victoria, were receiving them for mental injury claims. That’s gone up from 20.8% in 2019/2020 and 18.8% in 2018/2019, and out of all the new claims lodged… So WorkSafe generally gets round about 30,000 claims lodged per annum, give or take a few thousand in Victoria each year, well 13.1% of those were for mental health injuries ’21 financial year.

Rachel Cubela:

So they’re going up and they’re also harder to manage, because particularly with those interpersonal issues, it’s very difficult to get the worker back to the workplace. It’s also very difficult for the employer to manage the worker in the workplace, comply with the occ. health and safety obligations on the one side by providing a safe work environment to the worker and all their other employees, as well as getting the worker back to work and keeping those people potentially even physically distanced is difficult.

Rachel Cubela:

I suspect with the remote working from home we might see, I don’t know yet obviously, and the stats will tell us with the next annual report, that there could be a decrease in interpersonal conflict class as we’re working from home. So we’re not… We have to do zoom meetings and that’s become the norm. Office-based workers in particular, so that you also mentioned before, increased stress from COVID and then people are homeschooling and managing all other things about that. So it’ll be interesting to see if it goes up or down.

Danielle:

It will be interesting to see what happens as people start to go back to work because obviously some people are actually stressed about that. The increased risk of being exposed, they’ve got used to working from home, they’ve created a certain lifestyle and now they have to change it, it’s going to be a whole lot of complicated factors that come in into that, that’s going to increase it. And that’s one of the reasons why it’s a really important time right now for employers to understand their obligations, but also how they can benefit as an employer in terms of productivity and efficiency, workplace culture, et cetera, to actually manage mental health in the workplace. Because there’s going to be a whole lot of complications, I think, coming along in the next year.

Rachel Cubela:

And as I say, even the… It gets reported anecdotally, the rise in customers being upset and abusive toward staff because we’ve got the vaccinated, “Can you come in? Show me your certificate.” There’s a whole range of issues that COVID has introduced into workplaces. And again, not just the keeping the disease out or managing the disease, but dealing with it in terms of your workforce.

Danielle:

So Rachel in terms of cost, you hear mental health claims cost significantly more than physical injury claims on average. Of course there’s variation, but on average people do take longer to go back to work, they’re off work longer and the claims costs are a lot higher. So is that supported by the statistics that you see?

Rachel Cubela:

Yes, it is. Because it takes longer to get people to return to work, so they’re off for longer. The longer they’re off work, the more likely they are to not return to work and there’s statistics which I’m sure other people have discussed on your podcast before, about the longer you’re off, the more likely you are to stay off. So, that costs the scheme. And again workers’ comp is an insurance scheme. If the costs go up, then employers’ premiums go up. So those costs get factored in, whether they’re real costs or whether they’re projected costs.

Rachel Cubela:

So the system or the computer will analyze, and the algorithms will say, “Well, this worker is not back at work after 13 weeks, they’re unlikely to get back at all.” Then we’re heading for ongoing weekly payments, some schemes counter that by having a cutoff period. South Australia’s scheme compared to Victoria’s scheme is very generous, and you can potentially be on weekly claims to retirement age if you can’t get back in the workforce or you can’t resolve your common law damages claim.

Danielle:

Yeah. [crosstalk] South Australia’s definitely much more brutal, it cuts you off at two years unless you’re seriously injured. And with a mental health injury, that’s extremely high bar to reach. It’s easier with physical, but with psychological it’s very, very difficult to reach that. So most people there lose their income at the two year point.

Danielle:

So Ray, just wrapping up then, what would your strongest advice be to employers who want to create mentally healthy workplace programs? I think a lot of them are just feeling overwhelmed, not knowing what to do, they’re not experts in [inaudible] space, so they feel a bit lost. What would your advice be? Obviously you deal with employers who’ve got these claims, so I’m sure you are giving them advice in terms of preventing it going forward.

Rachel Cubela:

And that’s the thing you touched on there. It’s not… So when you have a mental health injury claim, the person that has to deal with that claim in the workforce, the supervisor, the work coordinator has to deal with the injury, that flow-on effect comes through the person that the injured worker might have complained about. You have to investigate that complaint. So it is like a ripple effect that spreads out. And then you’ve got absenteeism, then you’ve got replacement costs and the like. So you can only do so much, again we can’t get inside people’s heads, and we can’t… We might not necessarily know that someone is suffering, and certainly with the common law claims, the courts recognize that. So an employer is entitled to expect that someone is mentally healthy and turning up for work each day. If they’re put on notice that they’re not, then they need to act and do something about it.

Rachel Cubela:

So you mentioned mental health, wellbeing, workplaces, experts, the employers don’t have that expertise. They should get that expertise that will help employee wellbeing, clients… There’s potentially EAP counseling, employees programs are always a good idea. Open-door policy, how you treat people. I would say treat people, again pretty basic, how you would yourself and treat people with mental health injury claims, whether it’s work related or you suspect it’s something else at home, if someone-

Danielle:

Bring that culture of acceptance [crosstalk]

Rachel Cubela:

Absolutely. So feeling that they’re able to report a claim, that they’ll be supported, that things will be investigated, that there’s that understanding and that empathy. If someone had cancer and came to an employer and said, “I’m going to have to have time off work, I’ve got cancer. I’m going to need treatment.” the employer would be sending bunches of flowers and cards and baskets of fruit. But if someone says, “I’ve got a mental and health injury and I’m going to be off work.” the automatic reaction is, “Ah, yes. Oh, how do I know that? It’s not my fault, I didn’t do anything wrong.” And it’s not about having done something wrong. No, everyone might have acted perfectly fine, but that’s… You can only do so much. So speak to people nicely, the obvious things like that. But workplace is also, as you’ve said before, the culture. What might be acceptable in how you speak to people in a kitchen or on a building site might be very different from how you speak to people in an office environment and the phrasing you use. So-

Danielle:

So it sounds like [inaudible] they really need to do some training to around culture and education about mental health and how to talk to each other, leadership communication. Those sorts of skills seem to be what really counts in this space.

Rachel Cubela:

Yeah. So when someone puts a claim, we should be loving them, not rejecting them and shunning them. And the other side of mental health injury claims is often physical injury claims end up being mental health injuries. So because of that bad experience that, “I’m not believed that I’ve got a sore arm.” it then turns into an adjustment disorder that someone’s not coping with the injury or how they’re being treated. And that then takes on a life of its own. So things… Send fruit, invite them to events, and obviously you have to pick your times. You don’t want to be seen as harassing someone either, if they’re trying to get well. But don’t treat them like a leper. Again, put yourself in their shoes and just think of it as a cost of doing business. You’ve done your best and you’re there to support them. The best thing you can do is to get them back, that’ll save you. Your claims costs you. Help them back to work, replacement costs-

Danielle:

[crosstalk] overall as well in the end, isn’t it? To get back to work.

Rachel Cubela:

[crosstalk] Yeah, absolutely. There’s more community acknowledgement of mental health injuries, but WorkSafe is also looking, certainly in Victoria, to employers to take on some of the obligations that the normal community expectations have of mental health and wellbeing. So now in Victoria, they’ve introduced provisional liability for mental health injury claims, where it doesn’t matter whether liability was ultimately accepted on the claim or not, the worker will be able to get sessions of treatment up to a certain limit, whether the claims be rejected or ultimately accepted. If it’s accepted costs will go on there, if not the scheme will bear the cost. So you’re now in before you’re out, in a sense. It’s assumed if anyone ticks the box on the claim form, there’s now a box, physical injury, mental injury. And if they tick the mental injury box, then they’re entitled to counseling and treatment expenses. So that’s come in last year.

Danielle:

Yes. And it will be interesting to see how that rolls out statistically-wise and what difference that makes overall to how quickly people get back to work, and obviously the long-term cost to the scheme. Because it could actually reduce them, even though initially it sounds like it could increase them. But look, thank you so much, Rachel-

Rachel Cubela:

It’s my pleasure.

Danielle:

That’s been very educative and illuminating and I’m sure employers will get so much out of that. So thank you so much for your time today.

Rachel Cubela:

My pleasure Danielle, thank you.

Danielle:

Okay, bye.

Rachel Cubela:

Bye.