With today’s busy lifestyles and work pressures, many employees feel stressed at some time during their employment.  This means that employers should understand their legal rights and obligations to their employees and how to manage workplace issues such as mental illness and stress.  The National Employment Standards (NES) apply to national system employers and national system employees.  The employee’s paid personal/carer’s leave entitlement is specified in the Fair Work Act 2009 (Cth).  National system employees have a statutory entitlement to ten days paid personal leave or carer’s leave each year (pro rata) pursuant to section 96 of the Fair Work Act 2009 (Cth).  An employee’s entitlement to paid personal leave applies when the employee “is not fit for work because of a personal illness, or personal injury, affecting the employee”.  Is stress a personal illness?  Can an employee take paid personal leave for stress?

Today some of the statutory leave entitlements that employers and employees alike should be familiar with include the statutory leave entitlement to four weeks paid annual leave each year (pro rata), unpaid parental and adoption leave of 12 months, with a right to request an additional 12 months unpaid parental leave, and ten days paid personal/carer’s leave each year (pro rata).  There is also an employee entitlement to two days paid compassionate leave for each permissible occasion and two days unpaid carer’s leave for each permissible occasion.  The requirement that the Fair Work Information Statement about the National Employment Standards (NES) be provided to all new employees by their employer as soon as possible after the commencement of their employment enhances the protection of employees by drawing to their attention their legal entitlements arising from their employment.  The NES are minimum terms and conditions of employment that apply to all national system employees, with some exclusions or exceptions that apply to casual employees. The requirement that the NES Statement be given to new employees encourages employers to be aware of and understand their legal obligations to their employees and helps employees to be aware of and understand their legal entitlements.  Some of those legal entitlements may be relevant in the context of managing an employee’s prolonged absence from work due to an illness involving stress.

If the employee’s stress is part of a range of symptoms of a medically diagnosable illness, for instance anxiety disorder, the employer may need to manage the affected employee affected carefully to avoid legal issues concerning unlawful discrimination.  The employee may suffer from a physical or mental disability in the form of a medical condition involving stress and an employer should not take discriminatory action against the employee based on the disability. There have been instances where employees have been successful with a general protections dismissal application or a general protections non-dismissal application because their employer has taken adverse action against them due to a mental disability involving stress.  The Federal Circuit Court case of Penglase v Allied Express Transport Pty Ltd [2015] FCCA 804 demonstrates that an employee may be able to successfully pursue a general protections application against an employer if the employee is detrimentally affected by the employer’s actions after an absence from work due to illness.

Stress may be part of a range of symptoms suffered by a worker resulting in prolonged absence from work.  A worker’s compensation claim pursuant to the statutory workers’ compensation scheme for an alleged compensable “personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer’s instructions” will often involve a description of a worker’s symptoms to include stress. The statutory worker’s compensation scheme is designed provide workers with financial compensation if they become injured or ill as a result of their work, and it may include compensation to cover loss of earnings, permanent impairment, medical expenses, and workplace rehabilitation to assist injured or ill workers to return to work. Not every personal injury affecting a worker’s ability to work will be compensable.


Employers should carefully manage their employment relationships with their employees, including those taking paid personal leave from work and/or extended unpaid leave from work for a personal illness or injury involving symptoms of stress.


It should be noted that stress of itself is not an illness. It can, however, be a symptom of diagnosable mental illnesses. Therefore stress itself is not an illness that sick leave can be taken for but an employee may have a mental illness for which they can take sick leave which induces stress in the employee.


About the authors:

Kate Bretherton is a Perth lawyer and an Associate at Lynn & Brown Lawyers. Kate practices in the area of commercial law and employment law.  She is currently completing a PhD at UWA. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.


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