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I think I'm sick ... and it's your fault, boss
I suppose, in hindsight, it was something of an oddity of the 1980s.
Don't Ask Me was an otherwise uneventful children's television show. It had a relatively basic premiss: fill a television studio with scientists and let them answer the annoying questions that only children can ask.
Who would have guessed that such a simple kids show would give birth to a couple of cult heroes!
First, of course, there was the lovely Dr David Bellamy ? a botanist with a particular passion for all sorts of weird flora and fauna.
More significantly, however, there was a delightfully eccentric scientist ? Dr Magnus Pyke. Pyke was the sort of man who found beauty in all sorts of odd places ? and whose particular expertise was in solving scientific mysteries that seemed to defy explanation.
As a recent case illustrates, Pyke is the sort of fellow who can come in handy in the most unusual of employment cases.
One such case is that of Robertson v Waikato District Health Board (Unreported, Employment Relations Authority, Auckland, 25 August 2003) - an employment claim with all the hallmarks of a genuine scientific mystery.
Robyn Robertson started work at the Waikato District Health Board in 1989. She had a clerical position which was located in the radiology department. The major part of her work involved her in collating x-rays.
In 1999 Robertson began to experience some difficulties associated with handling x-rays. She reported that she had touched some x-rays which had been covered in strong smelling liquid and that, as a result, her hands had become red and blistered.
Over the months that followed there were unfortunate recurrences of this experience.
In response, the employer?s health and safety advisers investigated. Under a relevant ?skin policy? Robertson was referred to her general practitioner ? and, subsequently, to a specialist occupational physician.
Unfortunately, Robertson?s skin reactions continued to occur ? and, indeed, to get worse. In April 2000 she reported that after picking up a pile of x-rays her lips felt as if they were swollen and lead her having trouble swallowing.
Subsequent recurrences led to a tightening in Robertson?s chest, headaches and neck stiffness.
One of the puzzling aspects of Robertson?s case was the absence of any medical explanation to account for her condition. The x-ray films that she touched were finished within an inert substance and should not, in theory, have led to any health difficulties for her. Even Magnus Pyke would have found it difficult to explain what it was on the surface of x-rays that appeared to be causing her serious problems.
In August 2000 Robertson was informed that it was accepted that she had suffered a gradual process work injury under accident compensation legislation. Accordingly, she was entitled to receive earnings related compensation ? and did so for the best part of two years.
Meanwhile, Robertson was referred to a specialist respiratory physician. He concluded that she could be reacting to allergens which could also be found in other substances such as hair dyes, bleaches and deodorising oils.
In response to all of these different things, Robertson?s employer tried to find her an alternative role which would not result in her suffering the type of allergic reaction which had led to her medical problems. Over the course of almost a year and a half, the employer attempted to redeploy Robertson in six different alternative roles ? including receptionist, occupational therapy assistant and physiotherapist assistant roles.
Unfortunately, all of these efforts were to no avail. Robertson?s allergic reactions continued ? and by the time that she finally concluded her employment she was experiencing reactions to garden sprays, fresh newsprint, photocopied and faxed paper and laser printed material. Her reactions included skin redness, tightness in her chest and difficulty breathing.
Things came to a head in June 2002 when, frustrated at its inability to redeploy her into a suitable role, Robertson?s employer dismissed her. Robertson responded by bringing claims against her employer alleging that she had been unjustifiably dismissed and unjustifiably disadvantaged in the way that she had been treated during her employment. In short, Robertson argued that her employer had been unreasonable in allowing her to be exposed to chemicals through her employment which had led to her various health problems.
While the Authority was sympathetic to Robertson?s various health problems, it was not sympathetic to her claims.
The Authority found that the employer?s decision to dismiss had followed extensive efforts to assist, retrain and redeploy Robertson. As a result, the Authority held that Robertson had been dismissed in a procedurally fair manner on grounds which were justified on the basis of incapacity for work.
Further, the Authority found that, throughout the course of Robertson?s employment, her employer had complied with its statutory and contractual obligations to safeguard her from harm. Overall, it was unconvinced that the risk to her was foreseeable. The Authority held that Robertson?s allergic reaction to x-ray film was more than unusual ? it appeared to be unprecedented. In these circumstances, the Authority found that the employer could not be held liable for Robertson?s various health difficulties.
This case serves as a reminder that an employer is not a guarantor of an employee?s health and wellbeing. Its obligations (both under health and safety legislation and at employment law) are limited to a reasonable threshold. An employer cannot guard against things which cannot be reasonably foreseen ? such as the unusual (and unprecedented) health problems in this case.
