Your Stressed Employee May Not be Suitable For The Job

Do you have an employee that is finding it stressful to fulfil their tasks and performance obligations?

Very often, when an employee claims that their work tasks or expected performance standards are causing them stress, employers tend to panic and immediately look at modifying their duties to avoid a claim for stress under the workers compensation system.

However, employers should not be too quick to modify or alter tasks for such employees without first referring back to that employee’s contract of employment.

Employers know (in reference to their common law duty as an employer, past Occupational Health and Safety Acts and now the new harmonisation laws) that they have a duty of care to take reasonable steps to avoid exposing an employee to the risk or danger of injury and may be found to be negligent for a breach of this duty.[1]

When an employer has taken reasonable steps to avoid occupational stress (where such harm or injury was reasonably foreseeable) and the employee has, of their own free will, entered into an occupation and agreed to fulfil a role (perform tasks) as per their contract of employment then ‘Insistence [by the employer] upon performance of a contract [by the employee] cannot be in breach of a duty of care’.[2]

Basically, if an employee is finding it stressful because they are not able to meet the inherent requirements of the role they signed up to do, then the employer is entitled to performance manage the situation and the employee needs to make a decision as to whether they will improve their performance or resign.

Of course, an employer can mitigate their liability by taking steps that are reasonable in the circumstances such as:

-          Offering an Employee Assistance Program;

-          Providing training for skill improvement in areas like stress management, time management or task specific/industry specific skills; and

-          Ensuring that the employee has the appropriate resources to be as effective and efficient in their tasks as is reasonably possible.

Note: This blog is not been designed to provide professional legal advice.

Catherine Gillespie is Director of Workplace Conflict Resolution ( – an Australian company committed to supporting other companies in their efforts to achieve workplace harmony. Workplace Conflict Resolution specialises in workplace mediation, grievance investigations and training relating to communication, conflict prevention and management and the prevention of bullying, harassment and unlawful discrimination.

Catherine is a Nationally Accredited Advanced Mediator with a special interest in L & D, advanced communication skills and high conflict personalities. Catherine brings an holistic, mindful and curious approach to understanding conflict in each individual workplace such that she is able to recognise systemic issues underlying conflict and advise on employee relations, human resources, leadership and other factors  that impact on conflict, culture and performance.

[1] Cotter v Huddart Parker Ltd (1941) 42 SR (NSW) 33, O’Connor v Commissioner for Government

Transport (1954) 100 CLR 22, Hamilton v Nuroof (WA) Pty Ltd (1956) CLR 18, Ferraloro v Preston

Timber Pty Ltd (1982) 56 ALJR 872

[2] Koehler v Cerebros (Australia) Ltd (2005) 214 ALR 355 at [29]

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