Dialogue: Stress bill hazardous for bosses

By PHILLIPA MUIR*

We all want legislation that protects the health and welfare of our staff. And unfortunately, some employers have less than satisfactory safety records and have been penalised for workplace accidents.

So it is understandable that the Minister of Labour, Margaret Wilson, has introduced a bill to amend the Health and Safety in Employment Act 1992, to try to meet union demands for greater penalties for workplace accidents.

Certainly, dramatically increasing fines from $100,000 to $500,000 and increasing the maximum term of imprisonment from one to two years should act as a reality check for some offending employers.

But one aspect of the bill which appears worrying is the proposal to widen the definitions of "harm" and "hazard" in the act to cover:

* Physical or mental harm caused by work-related stress.

* Hazards "whether arising or caused within or outside the place of work".

* Situations where a person may be an actual or potential cause of harm because of physical or "mental fatigue".

Plainly, employees have a right to a safe workplace and employers have significant obligations in that regard.

I am not suggesting that employees should not be able to seek redress if they have suffered harm as a direct result of unreasonable stress their employer has placed on them.

Those remedies already exist, either at common law or by bringing a personal grievance action through the Employment Relations Authority.

Therefore, if the bill proceeds in its current form, employees will have another avenue to claim compensation - through private prosecutions as well as those brought by labour inspectors, which could result in criminal conviction, fine and/or imprisonment.

This raises the potential for double-dipping.

A simple remedy may be to introduce a provision similar to that applying, for example, to sexual harassment claims, where an employee must choose either to bring a personal grievance or to complain to the Human Rights Commission.

A more worrying aspect of the bill remains the lack of definition around "stress" and "mental fatigue".

These days, almost all workplaces carry with them an element of stress and there will obviously be times when employees could suffer a degree of mental fatigue while at work.

Does this mean that an employee should be able to sue an employer, on the grounds that such stress constitutes a hazard?

We could reach the point where employers are going to be fearful of asking their employees to go the extra mile, or work under any real pressure, for fear of prosecution.

In certain states in the US, workers claiming compensation for mental injury must prove that their workplace events were extraordinary.

In Queensland and South Australia, workplace legislation requires proof that the job was a "substantial" cause of the disability and that the disability did not arise predominantly from reasonable management action by the employer.

None of these limitations exist in the bill as drafted.



Stress is subjective. The bill provides no certainty as to what will constitute a mentally safe workplace or any guidelines as to the nature of the employer's duty in regard to mental injury, hazards or harm.

The fact that "hazard" is defined as including circumstances arising within or "outside" the workplace could open the floodgates to claims that workplace pressures have triggered mental harm even though the stress may have originally arisen from, say, financial pressure at home.

While it is relatively easy for employers to guard against physical hazards, it could be very difficult to identify mental fatigue and prevent it. This is particularly so when the bill makes no provision for contributory conduct.

Take the situation where an employee works extra hours voluntarily.

If that employee then suffers a stress injury, the employer could still be liable under the proposed OSH legislation, whereas under common law, the employee's contribution to the situation would be taken into account.

It is interesting to note on this point that in 1991, the Government published a booklet, Accident Compensation: A Fairer Scheme, which stated (page 32): "The present scheme does not include stress cover ... Grounds for this conclusion were not only the high costs, but also that stress is the result of a number of interrelated factors".

Also of note is that the bill does not require employees to take any responsibility for their own mental health.

How is an employer of a large workplace expected to know of the personal circumstances of all employees? The employer may be unaware that an employee is becoming fatigued by working night shifts, and yet could ultimately be held responsible for this under the "strict liability" provisions of this legislation.

In any event, it is reassuring to note that the bill will go through the select committee. Hopefully, issues such as the ones identified above can be remedied through this process.

If not, I fear I may suffer "mental fatigue" trying to deal with these claims!

* Phillipa Muir is a partner with legal firm Simpson Grierson.