Regulator placing workplace bullying and stress under the spotlight

In the wake of Dame Margaret Bazley’s recent Independent Review of Russell McVeagh, WorkSafe has indicated that it will be placing greater emphasis on the psychosocial aspect of health and safety in the workplace. These issues were dealt with in a recent Employment Court decision, FGH v RST [2018] NZEmpC 60.

The plaintiff, Mrs H, made allegations of workplace bullying and a failure by RST to provide a safe and healthy work environment. Mrs H suffered from anxiety, ADD, and sleep and incontinence issues.

These issues became known to RST during a performance management process. The crux of Ms H’s allegations was that she was disadvantaged by the way RST conducted the performance management process because it exacerbated her health problems.

The Court found in Ms H’s favour, and made useful comments on how stress, anxiety, and bullying are assessed from a health and safety perspective (though under the former Health and Safety in Employment Act 1992). Some key points from the judgment that persons conducting business or undertakings (PCBUs) should be aware of are:

• An assessment of workplace stress is assessed on the PCBU’s current knowledge of workers and their work environment.
• The PCBU does not need to cocoon workers from stress (regardless of the cause), but must act if stress is unreasonable as a result of workplace conditions.
• The assessment of whether worker stress is unreasonable must be ongoing. If stress starts out as reasonable but becomes unreasonable, the PCBU should take all practicable steps to minimise or eliminate the stress once it becomes unreasonable.
• The Court assesses whether bullying or harassment has occurred against the workplace’s relevant policy. It is important to ensure policies match practice when dealing with bullying complaints.
• Employee Assistance Programmes and health and safety representatives are helpful resources to assist workers dealing with psychosocial issues.
• If a worker tells you they have a medical condition that may impact their work, the PCBU should consider seeking a medical examination to confirm the nature and extent of the condition so that it is accounted for in the workplace.
• The validity of otherwise routine processes (including performance management and disciplinary processes, as was the case for Mrs H) will be assessed in light of the PCBU’s statutory health and safety obligations and how it is meeting them.

Keeping in mind WorkSafe’s new focus on this area, now is a good time to assess your policies and practices that address these issues.

Sarah-Lee Stead, Senior Associate, and Richard Monigatti, Solicitor, at Kensington Swan from the specialist Health and Safety team.