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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Stress: from sword to shield

Stress: from sword to shield
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New Zealand

Far from being used as a sword to smite erring employers, workplace stress has morphed into a shield cited in mitigation by errant employees, according to lawyer Andrew Scott-Howman.

Speaking at the IER conference in Auckland, organised by Conferenz, he used the sword-and-shield analogy to illustrate the difference between expectations in 2003, when stress was explicitly brought within the HSE Act, and how things have panned out.

"Everybody thought stress would be the next big thing, but how many in this room have had to deal with a big stress case?" he asked. Not a hand went up.

Mental health conditions exacerbated by stress - whether at work or elsewhere - have been highlighted by the Christchurch earthquakes, said Scott-Howman. Unwanted actions such as sexual harassment, which would normally have employers contemplating dismissal, were now having to be viewed through a more compassionate filter.

"How much compassion do you have for employees who slip up, who make mistakes? Your capacity for compassion is going to be tested because there are people suffering."

Employees could say their unwanted action wasn't entirely their fault because they were suffering from, for example, a depressive disorder. This reversed the previous view of stress as something caused by working conditions.

Not that this applies only in Canterbury, he noted. The need for compassion towards staff suffering from a mental health condition is nationwide, and leaves employers with a delicate series of decisions.

Scott-Howman drew an analogy with a man who breaks his arm playing rugby, then turns up at work with his arm in a sling. He takes the sling off and declares himself ready to begin his usual tasks. His employer would have an obvious duty to prevent this, and the same thing applies to staff with a mental health condition. "It shouldn't make any difference if it's your fault or not - your employee is broken."

The 2010 case of Alo vs New Zealand Customs Service was cited, where a long-serving employee whose first-hand experience of the aftermath of the tsunami in Thailand led to a severe depressive illness with post-traumatic stress disorder.

Alo's misconduct during a handover to his successor in the role led to his dismissal, but this was found to have been unjustified because the employer did not take into account that it had not responded to early signs of Alo's state of mental health, nor had it considered what part his illness might have played in his conduct and his inability to take part in the disciplinary process.

Scott-Howman's analysis was that the case required employers to ask two key questions. First, did an employee's health condition contribute to or explain his or her action? Second, does the health condition affect the appropriate penalty for this action?

His advice was that the facts have to speak for themselves: if someone engaged in misconduct then that was a fact regardless of any other circumstances. Where the employer must consider any health condition is in looking at penalties.

The usual scenario, he said, was that an allegation of misconduct would be followed by an investigation. If the evidence leads the employer to be inclined to dismiss the employee, it is at this point that the employee (or a legal representative) might flag the existence of a mitigating health condition, for which a medical diagnosis is needed.

"The employer is now in a terrible position: does your disorder mean I can't dismiss you when I normally would for this behaviour?" The employer now needs an expert diagnosis - a note from a GP saying the employee is under stress isn't good enough, because it is harm from stress, not stress itself, that is important.

Scott-Howman advised having a medical verification clause in all employment agreements to give the employer the right to compel employees to go to the expert of the employer's choice. Delay in getting an expert opinion, he said, is the worst enemy of both parties. The clause prevents delay.

Certain conduct can never be excused, but an employer should always consider the extent to which a pre-existing health condition might have contributed to it. The worst-case scenario would be one in which the medical evidence says that a dismissal would have a negative effect on the person's health, possibly leading to a suicidal state."What do you do then? Do you find that a bridge too far? I hope I never have to advise on this situation."

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Andrew Scott-Howman
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From Alert24 - Safeguard Update

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