Stress claims must be proved

By KEVIN TAYLOR

Workers will have to provide medical or other evidence of stress before the courts will find an employer liable under planned new health and safety rules.

Labour Minister Margaret Wilson says the proposed changes to the Health and Safety in Employment Act 1992 are for creating certainty.

But she and the Government are under fire from businesses for including stress and fatigue as workplace hazards in the amendment bill, which is before a select committee.

Ms Wilson stands by the bill, saying workers will need to provide adequate evidence that they are suffering from stress.

"It's not stupid, and it will never be so, because no one is going to take a prosecution just because someone says they're stressed."

She says the changes will push employers into setting up systems to deal with stress and fatigue.

Submissions on the bill close on March 1 and employers are sure to be writing.

Their questions include how stress and fatigue will be defined, when an employer will become liable, how much stress is too much, and how the courts will determine whether stress results from work or a worker's personal life.

There is already case law on stress in the workplace. The biggest cases have been against the public sector. All have been common-law claims heard in the civil court - not quasi-criminal prosecutions by the Occupational Safety and Health service.

OSH has never prosecuted anyone over workplace stress.

One of New Zealand's leading employment lawyers, Phillipa Muir, of Simpson Grierson, warns that the bill in its present form could allow double-dipping - through civil action and OSH prosecutions.

She argues that there is no need to change the law, and her concerns include the absence of a definition of stress.

"You name a workplace where there's not some element of stress in it," she says.

And her employer clients are concerned at what levels of stress could result in a prosecution.

Ms Wilson says the bill will not change the legal obligation on employers to continue taking "all practicable steps" to ensure employee safety.

"Stress is a hazard, like, in fact, unsafe earth banks."

But ultimately, stress will be for the courts to decide.

Asked if she was not setting a very difficult task for the courts, Ms Wilson replied: "You can ignore reality or not, because that difficult task is already before the courts. It's not like it's hypothetical."

Two cases have already been successful.

In 2000 a judge awarded probation officer Christopher Gilbert about $1 million, finding the Department of Corrections responsible for his ill-health and early retirement after failing to adequately resource the department's South Auckland operation and imposing a huge and ongoing workload on him.

The judge noted the department "outrageously and flagrantly" disregarded Mr Gilbert's safety when it required him to undertake full duties after his return from a stint in hospital. The case is under appeal.

The other case was that of police video operator George Brickell, who got $242,000 after developing post-traumatic stress disorder from viewing horrific sights as part of the job.

So the courts sent out a clear message even before Ms Wilson's OSH bill.

The minister says the Gilbert case outlined a poor situation. Despite warnings about high workloads on probation officers "no practicable steps were even attempted".

She cites another example, the financial services industry, where workers and unions have long complained of stress problems.

"People are being set performance targets which keep on changing."

Employers may claim that performance targets are an essential part of the industry, but the goals have to be achievable.

"That's where the consultation comes in, and that's where I'm hoping that we can set up codes within those industries where there are particular issues."

The Employers and Manufacturers Association (Northern) is one employer group wondering how stress will be defined.

Association advisory services manager Peter Tritt says: "Ultimately it's all entirely subjective. It's just a completely grey area."

He is supported by occupational medicine consultant Dr Bruce Gollop, who believes the courts will have a difficult time with the new legislation.

Case law will be developed, but along the way the courts will have to deal with a very wide spectrum of views from "experts" on stress.

He says there is no such condition as "occupational stress", and legislating for it will prove difficult. Education is a more productive way of addressing the issue.

Stress is a collection of symptoms that vary enormously among individuals.

"What causes unease to one person is quite different to another," Dr Gollop says.

"Some people will join the SAS in order to get some extra stimulation, whereas most people would find it stressful."

Dr Chris Walls, OSH departmental medical practitioner, says employers will be - and are - expected to identify "stressors" or fatigue as hazards.

They will also be expected to institute controls, either by eliminating the hazard if possible, or by isolating and minimising it.

Employers must also communicate those measures to staff, train them, and monitor the control measures.

He says stress factors can be identified and the effects measured - for example, in suicide rates in young doctors and nurses, sick leave from burnout, productivity, and sickness and absenteeism.

"OSH does not expect every complaint of stress to be taken as gospel, but a proper investigation and consideration should occur."

He says the Gilbert and Brickell cases were essentially about employers refusing to investigate and assess work situations despite repeated complaints from staff affected, and obvious staffing problems.

Dr Walls says it is unlikely that OSH or anyone else will pursue legal action in anything other than clear-cut cases.

OSH expects to release revised stress and fatigue guidelines at the end of the year.

* In Dialogue tomorrow: Margaret Wilson and Phillipa Muir on workplace stress and fatigue.