Providing a Mentally Safe Workplace in 2024
2024 has been a big year for the topic of mental health in the workplace, with several decisions out of the employment jurisdiction attracting media attention. We summarise some of those decisions and their significance in this article as a chance for employers to reflect on their obligations in this space.
Cronin-Lampe v The Board of Trustees of Melville High School
The Employment Court judgment
The Employment Court’s ruling in Cronin-Lampe v Board of Trustees of Melville High School (No 2) [2023] NZEmpC 221 caught the eyes of many for the staggering $1.78 million awarded to the two plaintiffs: Mr and Mrs Cronin-Lampe, who were school guidance counsellors. The award stemmed from their employer, Melville High School (the School), failing to comply with its duty to provide them with a safe workplace.
The Cronin-Lampes were diagnosed with Post-Traumatic Stress Disorder in 2012, which the Employment Court accepted was as a result of their employment. In the preceding 15 years, the pair provided extensive guidance and counselling services to the School’s community in relation to 32 student and community deaths – the majority by suicide. This work included visiting students and whanau offsite, officiating funerals, being contactable around the clock, and providing ongoing efforts in the School’s long-term response to the volume of tragic events.
Shortly after their diagnosis, the Cronin-Lampe’s were ruled medically unfit to work, and their employment ended for medical retirement. 12 years on, their claim that the School fell short of its duty to provide them with a safe workplace was successful.
In making that finding, one of the Employment Court’s key concerns was that the School took no steps to implement a health and safety plan for identifying the hazards and risk to the pair’s mental health as a result of the nature and volume of their work, and to that end, managing the reasonably foreseeable risk to the pair’s mental health as a result of the nature and volume of their work during their tenure.
The School argued the Cronin-Lampes did not sufficiently “spell out” their concerns so as to put the School on notice of risk to their mental health. This argument carried little weight in the context of the School’s pleadings that it had complied with its own health and safety duties. Rather, the Court reiterated the well-established principle that the School’s knowledge of reasonably foreseeable harm to its employees is not only established based on what the employer actually knew (i.e., as a result of the employee telling them), but also what it ought to have reasonably known. The circumstances were enough in and of themselves to make it clear to the School that harm to the Cronin-Lampe’s mental health could reasonably result in the absence of reasonable monitoring and management.
The appeal
In August 2024 the Ministry of Education (whom since the Employment Court’s decision have taken control of School’s affairs following its closure) successfully sought leave to appeal the Employment Court’s judgment in respect of its findings as to remedies awarded; specifically in relation to the Cronin-Lampe’s contribution to and mitigation of their loss arising from the harm caused during and after their employment (Minister of Education v Cronin-Lampe [2024] NZCA 382).
Pending the Court of Appeal’s judgment, the Employment Court decision is still a decision worth nothing for what it says about employers’ obligations in respect of providing employees with mentally safe workplace. It is not on the employee to “spell out” concern for their mental health as a result of their work where the employer ought to be aware of it in the circumstances anyway. There is no room for turning a blind eye.
Wiles v The Vice-Chancellor of the University of Auckland
Wiles v Vice-Chancellor of the University of Auckland [2024] NZEmpC 123 also caught the eye of the public earlier this year given the involvement of high-profile employee, Siouxsie Wiles. Associate Professor Wiles was (and still is) an Associate Professor at the University of Auckland, working within the Faculty of Medical and Health Sciences. Her role involved research and teaching, and also public commentary in the media from time to time.
Associate Professor Wiles became known to many through her public commentary during the COVID-19 pandemic. She was particularly good at simplifying complex scientific facts about the virus into information the general public could understand, and so she often appeared on the news, radio, and other media streams for that purpose.
Unfortunately, given conflicting ideas amongst the general public on how New Zealand could best respond to the pandemic, Associate Professor Wiles was subject to significant harassment both online and in person. This included threatening emails and social media messages; her phone number, email address, home address and photo of her home were all posted on a website opposed to the government’s response, and she was harassed in person at the University campus.
Fearful for her physical safety and under an immense amount of stress, Associate Professor Wiles raised concerns with the University. She asked for a plan for responding her personal information being leaked online, as well as for managing ongoing harassment.
The University’s response to Associate Professor Wiles, as well as other academics who were subject to the same sort of behaviour was to say stop engaging in public commentary about COVID-19. This was based on the University’s position that if a hazard cannot be managed or limited, then the only option is to stop engaging in the hazard altogether.
Thinking that more could be done to manage the issue, Associate Professor Wiles raised both a personal grievance and a contractual claim alleging the University had breaches its health and safety obligations.
Associate Professor Wiles’ claim led to the University engaging an external safety and security audit which produced a draft implementation plan for Associate Professor Wiles’ feedback. Associate Professor Wiles gave feedback that an individual risk assessment was required for herself and each other affected member of staff on the basis of individual risk factors. For example, gender-based harassment towards female academic staff was a known risk at the University.
The University acted on Associate Professor Wiles’ feedback and an individual risk assessment was carried out by KPMG. The implementation plan and external audit was finalised once that was to hand, and the University accepted all recommendations.
By that point Associate Professor Wiles’ claims were before the Employment Court. While a positive outcome appeared to be achieved in terms of ensuring Associate Professor Wiles’ mental and physical wellbeing, the Court criticised the road taken to get there. The Employment Court disagreed with the University’s initial response that the best way to keep Associate Professor Wiles and other academics safe was to tell them to stop providing online commentary about COVID-19. The Court said that, while it accepted the University’s intention was to reduce the risk of adverse consequences in doing so, this was an unreasonable instruction; there were alternative options available for mitigating the risk to Associate Professor Wiles’ health and safety.
Further, the Employment Court noted that public commentary was part of Associate Professor Wile’s job as an academic. The University therefore should have been putting in place a proper strategy to enable her and other staff to continue with that aspect of their role in the context of the pandemic.
The Court was also critical of the speed at which the University took steps to keep Associate Professor Wiles safe from ongoing harassment. It said that the University should have moved more quickly to put measures in place to protect and support Associate Professor Wiles, noting that the external audit was not commenced until mid-July 2021, despite Associate Professor Wiles first raising concerns with the University in March 2020.
Ultimately the Court accepted the University had made efforts to comply with its obligations to keep Associate Professor Wiles both mentally and physical safe at work, but those efforts fell short of the standard required. To that end, the decision illustrates the importance of employers acting in a timely manner when mental health concerns are raised by an employee.
The case is also notable for the importance of assessing risk to an employee’s mental health on an individual specific level. An assessment for a group of staff at risk of mental health is unlikely to discharge the employer’s obligations where different risk factors for different staff are at play. Employer’s should be asking themselves: what individual risk factors exist for the individual employee (e.g., personal circumstances, gender, age, disability), and what steps should be taken to minimise or eliminate harm in light of those individual risk factors?
Perry v The Warehouse Group Limited
Perry v The Warehouse Group Limited [2023] NZERA is another notable decision to come out of the employment jurisdiction in the last year, as it squarely deals with the issue of employee burnout.
Stephen Perry began working for The Noel Leeming Group (NLG) in 2019 as an Education Specialist. In June 2020, NLG underwent a restructure where Mr Perry’s role was not formally affected, but a consequence of the restructure was that after-sales support was removed. His workload, and by extension, his work-related stress, increased as a result.
Mr Perry first raised concerns about this during both his performance review and a separate team meeting in the second half of 2020.
TWG then merged with the Noel Leeming Group (NLG) and further additional tasks were added to Mr Perry’s role without consultation. For example, he was now required to cross-sell warehouse stationary products to customers.
By that stage Mr Perry was experiencing severe medical symptoms relating to his stress, and in turn he raised concerns of burnout with this employer in mid-2021. He specifically told his employer he was “burnout out” and “broken by the workload“, but Mr Perry’s manager disagreed that Mr Perry’s workload was excessive. In turn, the employer encouraged Mr Perry to access EAP support and offered him additional leave “off the books” to manage his symptoms.
Mr Perry later resigned in November 2021. In the same email, Mr Perry raised a personal grievance for constructive dismissal on the assertion that he had to resign as a result of mental burnout caused by his employer’s actions.
The Employment Relations Authority considered that the third category of the constructive dismissal categories (in Auckland Shop Employees IUOW v Woolworths (NZ) Ltd CA150/84, 3 April 1985) was relevant – being a breach of a duty by an employer that causes an employee to resign.
The Authority said a breach under this category must be repudiatory as opposed to merely inconsiderate or causing unhappiness and there must be a causal link between it and the tendering of the resignation. The possibility of resignation in response should be foreseeable. The Authority said that Mr Perry had made it clear he was considering resigning.
While the employer had taken some steps to alleviate pressure such as allowing leave on pay “off the books“, the Authority considered a fair and reasonable employer with the resources of a large employer would have taken more formal and proactive steps to understand Mr Perry’s mental health situation. In other words, his employer had offered support, but had not addressed the underlying workload and stress issues.
This determination is a good example of an employer not doing enough to meet its obligations in relation to an employee’s mental health and wellbeing where burnout concerns have been expressly raised. The determination is silent as to whether it was reasonable for the employer to disagree with Mr Perry that his workload was excessive. Instead, the Employment Relations Authority’s criticism centred on the employer’s failure to take steps to further explore Mr Perry’s feelings stress and/or burnout with the assistance of medical advice. This is a key learning for employers with staff claiming stress or burnout which, at least from the employer’s perspective, may be questionable.
Want to know more?
If you have any questions about the topics discussed in the article, please contact our specialist Employment Team
PDF version available here.