News
Just add a little bit of stress
There have been a lot of complaints about the Rugby Super 12 competition this year. Commentators and fans alike have raised reservations about the way in which referees have performed - and also about the way that players have behaved.
One of the noticeable (and somewhat disconcerting) trends apparent in this year's competition is a tendency for a player from a visiting team to celebrate the scoring of a try by looking at the home crowd and putting his hand to his ear (presumably making a point that the crowd's boisterous noise has ceased).
I don't know if it's possible to replicate this behaviour in the corporate world. If it could be done, however, it would be fitting to do so to make a point about workplace stress claims.
Last year - when our health and safety legislation was amended to confirm that stress could be a workplace hazard - there was a general outpouring of concern. A number of media commentators and employment lawyers alike predicted that the change in legislation - and the probable societal change that went along with it - would lead to a flood of litigation.
That has not come to pass - and, far from it, one year later we are left with little more than trickle of workplace stress claims.
It appears, however, that there still may be a degree of misunderstanding about workplace stress claims - possibly even including at the Employment Relations Authority level.
The claimant in Wootton v Te Runanga A Rangitane O Wairau (Unreported, Employment Relations Authority, Christchurch, 2 February 2004) had been employed as an administration officer. She was employed in a "Temporary Administration position" for approximately a three month period, to cover for an employee who had taken parental leave. Wootton's letter of appointment recorded her desire to work for a further three months if possible - but noted that the organisation's funding might place restraint upon its ability to extend the relationship for this additional period of time.
It appears that two significant things happened during the course of Wootton's fixed term. First, the permanent Administration Officer was dismissed for serious misconduct - leaving Wootton and her Manager as the only employees in the administration area of the business. Secondly, concerns were raised about Wootton's performance - which were duly communicated to her.
In any event, it appears that Wootton worked beyond the anticipated expiry date of her fixed term. After about month after this date, she visited her doctor because she was experiencing "symptoms of stress". Her general practitioner issued a medical certificate stating that she was unfit for work for a period of three weeks.
The employer was not entirely satisfied with the evidence about the absence, and required a more detailed medical certificate. Wootton's general practitioner diagnosed her as suffering from "work-related stress" and extended her absence to four weeks.
Wootton went to the office to deliver a medical certificate with this information, and was met by the Manager of the office, Toby MacDonald - who told her that he had been instructed to dismiss her. Wootton told the Authority that MacDonald gave two reasons for this - that the employment agreement had run its course, and that the medical certificate meant that she was no longer available for work.
Wootton raised a personal grievance - alleging both unjustified disadvantaged and unjustified dismissal. Part of her claim was an allegation relating to her diagnosis of work-related stress. In essence, it appears that she argued that she had been unjustifiably disadvantaged by being subjected to workplace circumstances which lead to her suffering harm.
The Employment Relations Authority reached conclusions about this aspect of the claim.
First, it concluded that evidence had been presented in the course of the hearing which suggested that some domestic difficulties could have accounted for Wootton's stress, and that therefore responsibility for Wootton's harm could not be fairly laid at her employer's door. It did, however, conclude that her personal stress levels increased due to the "busy nature of her work tasks and her inability to take rest breaks".
Secondly, the Authority found that the workplace was not unsafe, and was similar to a multitude of small, busy offices around the country. The Authority Member concluded, therefore, that the issue of work-related stress was not clearly foreseeable to the employer.
On this basis, Wootton's claim relating to workplace stress failed.
There are a number of observations that can be made about the Authority's reasoning and its decision, some of which can be helpfully related to the guidelines published by OSH concerning workplace stress - "Healthy Work: Managing Stress and Fatigue in the Workplace".
The Authority concluded that the "issue of work-related stress" was not clearly foreseeable by the employer in this case. Put simply, the law requires all employers to have an awareness about this issue - so a literal conclusion that the issue of workplace stress was not foreseeable is a little hard to understand. The real issue, however, is not an awareness of the existence of stress (which is a common thing in a number of workplaces) - but an awareness of the possible harm that can result from it. Perhaps this is what the Authority intended to mean in its conclusion - that is, that the prospect of harm to Wootten could not be foreseen.
However, there is an issue as to whether Wootten demonstrated that she suffered harm from stress. "Stress" is not a medical diagnosis. A certificate from a general practitioner stating that someone is unwell from "stress" does not automatically constitute evidence of serious harm. Put simply, a diagnosis of harm from work-related stress should ordinarily be made by a relevant specialist - against recognised diagnostic criteria.
The decision in this case arguably reflects a pattern that has emerged in employment claims over the course of the last couple of years. An employee who is subjected to admittedly distressing circumstances can claim that he or she is "stressed". The person may even convince a general practitioner to provide a note stating so.
However, that fact in itself does not mean that those circumstances give rise to a claim of harm from workplace stress. Indeed, if it did (ie if an expert medical diagnosis of harm was obtained) the employer would have an obligation to report the incident to the Department of Labour.
This case perhaps demonstrates the predominance of allegations of "stress" in employment cases, and also allows us to reflect upon distinctions that one might expect to see in claims relating to harm from workplace stress.
