Published in Human Resources - Spring 2022

Under the Health and Safety at Work Act, employers have a duty to eliminate risks to health and safety, so far as is reasonably practicable. Alternatively, if it is not reasonably practicable to eliminate them, the employer must minimise those risks so far as is reasonably practicable. Health is defined in the Act as meaning physical and mental health. This essentially requires that employers protect employees against psychological harm and must accommodate employees impacted by mental health or disabilities.

Failure by an employer to provide a workplace that accommodates health and safety requirements is grounds for an employee to bring a claim of unjustified disadvantage or potentially unjustified dismissal. In addition, employers may potentially find themselves investigated by WorkSafe where a business has failed to manage significant mental health risks.

Mental health condition

The recent case of Scott v Vice Chancellor of University of Canterbury demonstrates that employers should take care not to stigmatise mental impairment. Dr Scott was awarded substantial sums for lost remuneration and compensation for the humiliation and loss of dignity she suffered.

The University of Canterbury was found liable for having unjustifiably disadvantaging and unjustifiably dismissing a senior lecturer with Bipolar Mood Disorder. Dr Scott had been employed by the University for 19 years when she was dismissed for medical incapacity and serious misconduct. Her dismissal followed two formal warnings and a long period of enforced sick leave. Dr Scott wanted to work and provided expert medical opinions confirming her fitness to resume duties. The University, however, was concerned Dr Scott was a risk to herself and others and could bring the employer into disrepute.

Breach of duty of good faith

Dr Scott raised personal grievances claiming she was unjustifiably suspended and unjustifiably disadvantaged when her IT access was removed. Dr Scott claimed the University’s failure to accept the medical advice that she was fit to return was a breach of the duty of good faith and that she was the subject of discrimination on the grounds of disability. Dr Scott also claimed the warnings given were unjustified actions causing her disadvantage, and that her dismissal was unjustified.

The University maintained that its concerns about Dr Scott’s mental health and conduct were those of a fair and reasonable employer. It considered it had followed a fair and reasonable process in addressing those concerns, and termination of employment was justified in all the circumstances.

The Employment Relations Authority found the University had unjustifiably dismissed Dr Scott and that its actions in placing her on sick leave and taking away her IT access had disadvantaged her. It also found the formal warnings unjustified, and that the University had failed to follow fair process and treat Dr Scott fairly and reasonably. It awarded Dr Scott around 18 months of lost wages and compensation of over $50,000.

Multiple failures

The lengthy decision outlines numerous failures on the part of the University. The University failed to maintain an open mind towards Dr Scott and genuinely consult and listen to her views; nor acknowledge Dr Scott as a competent and intelligent person with a valid perspective; nor give due weight to specialist medical reports or other evidence in Dr Scott’s favour that did not accord with its predetermined view; nor respect Dr Scott’s right to maintain some privacy over her medical records and be given a fair assessment; nor appreciate the significant impact its detrimental actions were having on Dr Scott’s ongoing health and wellbeing. The University had acted based on its fear of Dr Scott’s Bipolar Mood Disorder and viewed Dr Scott as a liability.

The lessons from the case are important as a significant number of employees experience mental impairment or illness at some stage in their lives that may impact on their employment occasionally. While mental impairment or illness should be viewed and accommodated in the same way as any physical injury or illness is managed, that is sometimes easier said than done. The employee may not be thinking clearly or rationally. Sometimes it is difficult to engage with the employee or their support network (and that can be hindered or prevented by privacy issues). Sometimes the employer needs to deal with conflicting diagnoses or prognoses from professionals. On a pragmatic level, these days it seems to take ages to obtain appointments for assessments or treatment with qualified professionals.

David is an Employment Law Barrister. David has over 30 years of employment law experience in New Zealand and overseas. His expertise is recognised by his peers. For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia.

Here’s a hypothetical case for an employer to grapple with. Before commencing employment the employee has disclosed the most serious incident the employee was involved in as a youth to the “interviewing panel” (although maybe not the full extent of that type of behaviour). The issue is disclosed to senior management before the employee is offered employment. The Chief Executive is not informed of the issue and works closely with the employee to support the employee in the business and local community. Subsequently, the issue is made public and the employee and the employer come under close scrutiny.

Outside the employment jurisdiction, Parliament’s newest MP has been thrust into the public’s attention after it was revealed in the media that he was kicked out of boarding school as a teenager for seriously beating up a younger student with several other boys.

To Sam Uffindell’s credit it appears that he genuinely apologised to his victim prior to standing as a candidate in the Tauranga by-election. It seems that he disclosed the matter during the National Party’s candidate selection process. It also appears that the Selection Committee advised the National Party Leader’s office, but the disclosure was not passed onto the National Party Leader, Christopher Luxon.

Subsequently, Mr Uffindell has been stood down pending an independent investigation by respected employment lawyer Maria Dew QC after a further serious allegation was made by a former female flatmate of events dating back to a student flat in Dunedin in 2003.

Mr Uffindell campaigned in part on a law and order platform. For example, in his campaign launch speech, Mr Uffindell said “As the Tauranga Member of Parliament, my commitment will be to law-abiding citizens not to the gangs, criminals and those engaged in anti-social behaviour. You deserve to be safe in your home and in our community”. Mr Uffindell did not disclose his past history to voters while on the campaign trail. Read more....

Our athletes and sportspeople have been doing us proud in Birmingham. Our attention is drawn to male and female events alike with no disparity. If a medal is achieved, our nation basks in their success.

The New Zealand team in Birmingham is fronting more female athletes than males. When the excitement of the Birmingham games dies down, we can reflect on progress in some of our professional teams and pay equity.

Sport fans will have read recently of the ground-breaking news that the United States’ national women’s soccer team has scored a pay agreement that equalises the rate they receive for game appearances and tournament victories as the national men’s team.

The agreement will end the women’s guaranteed-salary system they previously had and put both national teams on a pay-for-play model. The previous salary system offered the women players security and a constant wage, but failed to reward players for their time on the field as the men’s wages did.

Top players will now receive higher match payments, shared World Cup pay-outs with the men and revenue-sharing splits with US Soccer. The shared World Cup pay-outs means that the prize money won by each team will be pooled and split between the teams equally, which corrects the imbalance that FIFA (the sport’s international governing institution in charge of the World Cups) pays the men’s tournament players significantly more than the women’s tournament players.

Another part of the agreement relates to revenue-sharing. This part could see the women players receive millions more from their cut of US Soccer’s commercial revenues each year. It is clearly a comprehensive accounting of the imbalance between the two teams’ pay.

A downside of the agreement is that it takes away resources that could be used to support all levels and all facets of the game.  This is a similar problem faced by New Zealand Rugby. Indeed, lack of funding for women’s rugby and grass-roots clubs is part of the attraction behind the investment agreement by US private equity firm Silver Lake with New Zealand Rugby. Read more...

Managing health and safety at work is everyone’s responsibility. People often get hurt because nobody has thought about how the work might be dangerous. Sometimes people are harmed because they have not been trained to do their job safely.

Accidents at work are very common. The statistics are frightening. It is reported that about 50 people are killed at work in New Zealand every year, and more are seriously injured. Each year, an estimated 600 to 900 people die from work-related disease. If that is correct, a worker is more than 10 times likely to die from a work-related disease than from an accident at work.

Two recent sentencings in the District Court illustrate the importance of taking health and safety seriously, no matter the size or complexity of the work environment. Read more