Shining a spotlight on workplace fatigue and bullying in the SA health sector

In the wake of the coronavirus pandemic (COVID-19), many employers in the public, private and not-for-profit health services sector remain alert to the risks of workplace fatigue and bullying, as well as their impact on employees' health and wellbeing.

A February 2020 report, which was released after a parliamentary inquiry into workplace fatigue and bullying in public sector health services, is instructive. As part of the inquiry, the Occupational Safety, Rehabilitation and Compensation Committee received submissions from 23 organisations and 47 individuals. The Committee subsequently launched a survey resulting in some 2,000 valid responses. The survey was open between 3 April and 31 May 2019.

The Committee acknowledged that the survey was completed by voluntary, self-selecting participants. Therefore, it was more likely to attract respondents who were affected by workplace fatigue or bullying. This meant that it was not reflective of all experiences of employees across South Australian hospitals and health services. Taking that into account, survey results indicated:

• 75.3% of survey participants were female.
• Survey participants worked across the following professions: nursing and midwifery (40%), allied health (17%), medical (17%), hospital administration (12%), and other health professions (8.9%), with the remaining balance in ambulance and facilities services.
• 70% of survey participants had worked in their current profession for 11 or more years.
• 53% of survey participants indicated their longest continuous period of work (excluding meal breaks) in a typical seven day period involved working between 9 to 15 hours.
• 56% of survey participants would work 1 or more days without a meal break in a typical seven day period.
• 75.1% of survey participants had witnessed bullying at work in the 12 months prior to the survey.
• Almost one in two survey participants had experienced bullying themselves in the 12 months prior to the survey.
• 79% of survey participants responded 'No' to a question about whether they had ever submitted a formal complaint regarding workplace bullying.
• More than 50% of survey participants had taken sick leave due to workplace fatigue.

The Committee found the factors commonly raised as contributing to workplace fatigue and bullying included: high-pressured nature of work, long hours, shift work, overtime, and on-call work as part of a 24/7 operation. These factors were exacerbated by a hierarchical workforce, lack of contemporary management skills, and inadequate complaint resolution processes.

Based on consultation involving the survey, submissions, witness hearings and site visits, the Committee made 27 recommendations. The nature of these recommendations included:

• improving systems and processes to ensure obtaining accurate data about work hours, embedding early intervention programs to improve workplace culture, and training staff with the necessary skills for management and leadership;
• improving existing complaint management/resolution processes, including in relation to communicating with complainants, facilitating transparency and accountability, ensuring resolution of complaints, regardless of staff movement, and implementing a single system to record, track and manage bullying-related complaints; and
• ensuring appropriate levels of accountability, including through board reporting against key performance indicators relating to workplace fatigue and bullying.

As health services continue to navigate the impact of employees working in a COVID-19 context, the report's survey results and recommendations warrant thought. Employers have statutory obligations to ensure, so far as is reasonably practicable, the health and safety of their workers, including in relation to their mental health. The broad recommendations of the Committee provide an opportunity for employers to review their systems to monitor and address workplace fatigue and bullying.

When an 'unsuitable' psychological assessment is a valid reason for dismissal

From time to time, an employer may find itself having to determine whether an employee can perform the inherent requirements of their role.

Terminating an employee's employment in this context is often a vexed issue and one that should be carefully considered.

In a recent determination of the Fair Work Commission, Deputy President Anderson upheld a decision by Baptist Care SA (Baptist Care). This decision was to terminate a child support worker's employment in circumstances where he had been found to be 'unsuitable' for his role following a psychometric assessment.

Baptist Care's services include providing emergency and ongoing residential care for children who are under the guardianship of the Chief Executive Officer of the South Australian Department of Child Protection (the Department). The relevant child support worker (DA) was employed under two contracts of employment, one of which involved working with such children on a casual basis and which was his primary work.

Statutory changes implemented in December 2018 resulted in a requirement for all employees working in a children’s residential facility, operated or licensed by the Department, to undertake and pass a Psychological Suitability Assessment (PSA). Baptist Care issued new employment contracts in view of those statutory changes, including to DA. Baptist Care also circulated bulletins to employees (including DA) advising them that it would make attempts to redeploy them if they received an 'unsuitable' PSA. It also advised that if that option were not viable, it would have a discussion about the person's ongoing employment.

DA's new employment contract, which he signed and returned to Baptist Care, included:

• a requirement to 'participate in and adequately pass approved psychometric testing with a provider nominated by Baptist Care SA at any time'; and
• terms to the effect that it was a condition of his employment with Baptist Care to have an approved child-related employment screening clearance, failing which he would not be eligible or entitled to any work for the period of time without providing the valid clearance.

A PSA for DA, conducted by a third party assessor appointed by the Department, found he was 'currently psychologically unsuitable' for his role. Under the protocols in place for PSAs, if an employee was assessed as ‘unsuitable':

• it did not imply or mean that the employee would engage in unacceptable behaviour (including harming a child);
• the assessment had effect for a 12 month period after which the employee could, with their employer’s support, undertake a fresh assessment;
• neither the employer nor employee would be advised of the reasons for the assessment. The employer would be provided a Statement of Suitability, which would only advise that a particular employee (by name) had been assessed as unsuitable without any additional information; and
• there was no mechanism for the employer or employee to obtain reasons for the assessment, or for its re-evaluation or review.

Baptist Care issued a show cause letter to DA in view of the outcome of the PSA, on the basis of its concerns about DA's capacity to perform the inherent requirements of his role. It subsequently dismissed him for the same reason. DA brought an unfair dismissal claim challenging Baptist Care's decision to terminate his employment. He sought reinstatement or compensation.

DA contended there was no valid reason for the dismissal because the PSA reached the wrong conclusion. Ultimately, Deputy President Anderson held that being accredited with a satisfactory PSA was an inherent requirement of the job and one DA did not satisfy. In response to DA's contention, Deputy President Anderson found that, while DA was a credible witness, he did not accept DA's contention and noted it wrongly conflated the reasons for the assessment with the reason for the dismissal. He stated: 'DA was not dismissed because, in the opinion of his employer, he was unsuitable to work with children. He was dismissed because his employer formed the view that once assessed by the third party as unsuitable, DA could no longer perform an inherent requirement of the job'.

In coming to this decision, Deputy President Anderson acknowledged the statutory basis under which the PSA obligation arose. He also acknowledged the contractual basis with the Department, under which Baptist Care was obliged to ensure it and its employees complied with the statutory requirement. DA proceeded to appeal the decision, but was unsuccessful.

The decision provides comfort that non-compliance by an employee with a clear contractual or legislative requirement to hold a licence, qualification, or accreditation in order to perform their role, can be a valid reason for dismissal. That said, we encourage employers to seek tailored advice promptly to ensure such a contractual or legislative basis exists with a view to seeing that employees are afforded a lawful and procedurally fair process when making any decisions relating to their employment.

Burn incident prompts comment from SafeWork SA Executive Director about employer responsibilities to train young staff

In August 2020, SafeWork SA launched an investigation into an incident where a 21 year old café worker was injured. The worker's face and hair was set alight, after a flashback flame ignited when she poured methylated spirits into an ethanol burner. She was hospitalised having sustained serious injuries with burns to her face, neck and hands.

Following investigation, SafeWork SA found the employer, H&T Cook Enterprises Pty Ltd (H&T), had failed in several areas. These included ensuring the worker refuelled the burner in accordance with the manufacturer's instructions, providing workers with written instructions relating to the refuelling, adequately training all workers in accordance with the manufacturer's instructions, and supervising all workers whilst they refuelled the burner.

Both H&T and its director, Tiarne Cook, pleaded guilty to charges for breaching sections 19 and 32 of the Work Health and Safety Act 2012 (SA). This involved a failure to, so far as reasonably practicable, ensure the health and safety of workers. Ms Cook also pleaded guilty to a failure to exercise due diligence to ensure that H&T complied with its statutory duty. Sentencing is yet to occur.

SafeWork SA Executive Director Martyn Campbell stated that: "there is a higher onus on business owners to ensure all young workers are provided with adequate training and supervision". He noted that many small business employed young, casual and inexperienced workers who often were working for the first time. Mr Campbell emphasised that it was critical for business owners to take extra precautions for such a vulnerable group.

This incident is a timely reminder for employers, particularly in the hospitality sector (and their directors), to pro-actively review:

• the information, instruction, training and supervision they provide, to enable their workers to perform work safely;
• their safety protocols to ensure a safe work environment, and one that does not endanger workers or customers; and
• relevant SafeWork SA Codes of Practice, which can be accessed here

Please get in touch with a member of our Workplace team if you would like more information on anything we have discussed in this article.