Paul Jarvie: Landmark case in work stress

Opinion

The first case of work-related stress causing harm has just been determined in the Nelson District Court. The 2003 Health and Safety in Employment Amendment Act particularised that stress is a hazard in the workplace capable of causing harm, and the Nelson case found this had occurred.

Since employers have the duty to identify and manage workplace hazards under the act, their options are to eliminate, isolate or minimise such hazards.

But stress is not a condition in itself, as District Court Judge David McKegg implied in his ruling on the Nelson case. He said: "Employers have to be vigilant that the stress placed on an employee is reasonable.

"There will always be stresses in a job, but they must not become health-threatening. Where employees have stressful work conditions and special medical difficulties advised to the employer, then immediate remedial action is required."

Stress is a sign or symptom that individuals may exhibit. It results from how a person feels and reacts to a given set of circumstances. If the feelings are negative, they can lead to physical or mental harm. But how a person deals with the level of stress they become exposed to depends very much on the individual.

How they react will be determined by their life history, what kind of childhood they had, first job, life in the fast lane, and what kind of person they are. All this is highly complicated and not well understood.

The circumstances in a workplace are only one part of the matrix. Do they cause, contribute or aggravate an underlying condition? Was it workplace stress that was the last straw, the point at which a person moved from coping to not coping? After all, having the flu at work doesn't mean you caught it there.

In the Nelson case, the employer admitted culpability, which the judge acknowledged was important as it "removes from the complainant the tensions of evidence-giving". The company showed remorse for the offence and the harm caused, and had settled all outstanding claims under the Employment Relations Act.

Anyway, as Judge McKegg noted: "I doubt any deterrent would be required for the defendant company personally because it has taken this matter very seriously. But generally there needs to be a deterrent in effect in sentencing to discourage any employer from avoiding responsibility for the health of their employees."

The company was fined $8000.

The issues for employers to address from this not particularly strong precedent revolve around what actions the employer should have taken to avoid harm or prosecution.

Within a few days of being appointed to help in the employer's accounting department in August 2003, the person concerned found she was on her own. She took on the extra work left when the financial manager and assistant resigned.

But two months later, she was undergoing stress-related pain and on medication. When this was made known to her employer it was agreed straight away that two extra staff should be taken on. By mid-December a qualified accountant had joined as well.

By January last year, with three extra staff in place, the employee suffered chest pains and was advised not to go to work. At the end of that month her condition was diagnosed as caused by work stresses.

Judge McKegg found that although her employer "had acknowledged the problem after it had been told, a solution to alleviate the stress was not found and this injury occurred. That means all practicable steps were not taken" (as required by the 1992 Health and Safety in Employment Act).

The judge went on to say: "Whether the potential injury is to health or to life and limb, the obligation of the employer remains the same."

Although the employer was made aware of the stressful circumstances affecting the employee, and notified of the changes occurring to her health, and took steps, the ruling was they were not effective.

Most employers are not equipped to identify stress in the workplace, nor are they required to, lest a raft of life-threatening circumstances emerge.

What they are required to do is watch out for, and identify changes in a person's behaviour, and to respond immediately when these are brought to their attention.

To do this employers have to rely on observations, complaints from others, or complaints from an individual concerned.

Employers must then take pre-determined intervention. The OSH book Healthy Workplaces sets out options.

* Paul Jarvie is the manager of occupational health and safety for the Employers and Manufacturers Association (Northern).