If you're stressed, tell your employer about it

OPINION: As we are all feeling "stressed" at this time of year thought I would add to it with this case, writes Mary-Jane Thomas in this week's Work to Rule.

R worked for Air New Zealand and her job involved supervision, coaching and mentoring a team of 18 staff. Because of constant interruptions during the day she found that she had to work extra hours at night to get her own work done.

The pressure was constant. R told her employer that she was struggling to cope. Her direct supervisors were understanding and somewhat sympathetic but her workload was not reduced. Again and again she told them about her excessive workload and again and again she was ignored. Eventually she was supervising 27 staff along with undertaking the administrative functions for the role. Not surprisingly, she collapsed from exhaustion.

She took periods of sick leave and returned to work fulltime after about four months. She continued to ask for help and still no help was forthcoming.

R was diagnosed with panic attacks after a further three months of being back at work. She had to take time off work again.

Seven or eight months later she developed problems with her eyes that were found to be caused by stress. Again she took time off work and was placed in a training role, temporarily and in a part- time capacity while she recovered.

The company went into restructuring mode about two years later and she was offered the training role permanently. She was told that if she turned down the role she would not be entitled to redundancy compensation. R resigned and claimed she had been constructively dismissed – in short this means that you resign because you are forced to because of some breach of duty by the employer.

The Employment Relations Authority concluded that R had been suffering serious harm from the first time she had collapsed from exhaustion. No other evidence was produced that there were any other stressors in her life at the time, other than her work. It decided that the airline had failed to take all practicable steps to ensure R's safety at work and that this breach caused her serious harm.

Further, the ERA found that the serious harm was reasonably foreseeable. In other words, a reasonable employer would have foreseen that failing to take practicable steps was likely to cause her serious harm. The employer was required to, initially, take notice of her cries for help and to then address the causes of the stress, that is, the excessive workload.

The case was unusual in that instead of making an award in favour of R, the ERA sent the matter back to the parties to determine the quantum of damages payable. This case is a salutary lesson for employers. Employers need to be aware of, and take notice of staff who complain about stress or overwork. This is no longer something that can be ignored and put on the back burner. Employers need to take action as soon as reasonably practicable. Even if the employer believes that the stressors are non-work-related, they must address that and show that they have done what they can with respect to the work-related stressors.

Employees who find themselves in this type of stressful situation need to remember that they, too, owe an obligation to their employer, to tell them about what is happening and how they are feeling; they can't leave things until they actually "fall over". When the act was originally changed in 2003 to incorporate "stress" as a form of harm, it was thought the floodgates of litigation would open, but this has not been the case. When employees have made the employer aware of stress as a cause of workplace harm and the employer has not reacted, the courts – and the ERA – have; but the onus is on the employee to first notify the employer of the stressful situation.

Final note – thanks to all those who participated in this year's Gulp Gallop and Grind. My own personal favourite moment was riding along beside the estuary on a bike that I had never ridden before that has those click-in shoes, which meant that, firstly, I couldn't click my feet out hence I couldn't stop, and if I did stop (that is, fall off) then I couldn't put my feet back in. Anyway, riding along beside the estuary with gusts of wind threatening to blow me into the estuary and, to top it off, it started to hail and I couldn't see anything because my glasses were so wet – priceless.

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to Mary-Jane.Thomas@prlaw.co.nz.

- © Fairfax NZ News

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