Opinion & Analysis
OPINION: When I started working as a law clerk in a large Wellington law firm, word processing technology was in its infancy.
Letters would be sent to a typist and could be polished a couple of times. Any changes resulted in the whole document being retyped.
Then came the word processor. which greatly reduced the time and resources required for correspondence. Now we have the internet, email and smartphones. All of these developments have impacted significantly on employers, workers and employment law generally.
Businesses have no doubt become more efficient and profitable as a result of instantaneous communications. But the other consequence is that those sending emails tend to expect an immediate response. The more leisurely and considered way of responding within a few days seems to have vanished.
This leads to significant pressure on both employers and employees. A quick response might not be balanced and accurate.
Smartphones mean employees can be contacted at all hours. The result is that work-life balance is often lacking.
Workers may be envious of a recent agreement between employers' federations and unions in France which gives employees a right to not check their work emails during legally mandated rest periods, without facing retribution.
The agreement, which is legally binding, affects nearly 250,000 employees. Companies that have signed up to the deal include the French arms of Google, Facebook, Deloitte and PricewaterhouseCoopers.
Union membership in New Zealand has diminished. As a result, New Zealand workers rely predominantly on legislation and the courts for protection. The Health and Safety in Employment Act is a good example of this.
An employment agreement will generally specify work hours and if the employee can be required to work additional hours or to remain contactable away from the workplace. Regardless, it is now extremely common these days for employees to check and respond to work emails outside work hours.
Employers have obligations to provide a safe workplace. This includes ensuring that the way work is organised does not place staff under undue stress. Employers who breach their health and safety obligations are likely to find themselves before the courts, as the case of Shelly Rosenberg illustrates.
Rosenberg was employed by Air New Zealand in its agency support team. Her role focused on staff management and administration.
Rosenberg enjoyed the role but her responsibilities progressively increased. She believed that her workload was becoming demanding to the point of being excessive. She eventually started working after hours so that she could meet her responsibilities.
Rosenberg raised concerns on several occasions about her workload and steps were taken by Air New Zealand to alleviate the stress. Business cases for reducing Rosenberg's workload and engaging further staff were drafted, but none were adopted.
In the ensuing years, Rosenberg's workload only increased. Eventually she had a breakdown and her GP certified her as unfit to work. She returned to work following a brief period of sick leave and worked for several more years before finally resigning after a restructure.
Rosenberg subsequently brought several legal claims against her former employer in the Employment Relations Authority including that it had breached its duty to provide a safe and healthy workplace.
The authority had no trouble upholding Rosenberg's health and safety claim. It determined that the risk of Rosenberg suffering serious harm was entirely foreseeable and that Air New Zealand had failed to take reasonable steps to address the risk before her breakdown.
The authority did note that Air New Zealand complied with its health and safety obligations after her breakdown. However, Rosenberg was awarded damages for the initial breaches.
Rosenberg's case was not one of work emails following her home. However I expect there will be claims in the future brought by workers who are expected to continue working into the evening and on weekends responding to emails, and who subsequently suffer stress-related illnesses.
It may be difficult to draw diligent workers away from their smartphones. Some say they have become a modern addiction. However, employers and to a degree employees need to take responsibility for work organisation, workload and work-life balance.
Some occupations require response to cellphones and emails outside office hours, such as staff in hospitals, perhaps travel agents responding to people in difficulty in other countries, and New Zealand diplomats. Despite that, the French approach might well provide useful guidance for the future.
Peter Cullen is a partner at Cullen - the Employment Law Firm. He can be contacted at firstname.lastname@example.org