Written by Cullen - The Employment Law Firm, a Wellington firm specialising in employment law.

This article has also been published in The Dominion.

A lot of people will probably know of a friend or a relative who has suffered from substantial stress leading to 'burn out' at work. Given the fast pace of our lives and work environment, workplace stress is a common problem. Sometimes it can be brought about by an over-zealous workaholic, and other times it is caused by a poorly structured and over-demanding work environment.

Clearly, there is no such thing as a pressure-free job. Every job brings its own set of tasks, responsibilities and day-to-day problems. The pressures and demands these place on workers are an unavoidable part of working life. Some pressures are in fact positive as they challenge people and give them motivation and structure. However, excessive workplace pressure and the stress it creates can be harmful. It can lead to sustained and damaging results.

Workplace stress has recently been a focus in employment law. The Health and Safety in Employment Act 1992 requires employers to provide good and safe working conditions, and to take all reasonable precautions for the safety and health of workers. The suggested amendments to the Act expressly highlight the obligations of employers to protect employees from physical injury and mental fatigue caused through 'work related stress'.
Additionally, there have been several high profile cases lately, where employees have sought damages from employers because of harm arising through an unsafe work environment.

The leading New Zealand case on work stress was taken by Christopher Gilbert. Gilbert was a Probation Officer who was forced to retire on medical grounds. Gilbert's work pressure was so intense and continued for such a long time that he developed vital exhaustion and coronary artery disease. Mr Gilbert underwent major heart surgery and in August 1998 was assessed as being 90% disabled.

The Court of Appeal upheld the Employment Court decision that Mr Gilbert was entitled to substantial damages. Mr Gilbert was exposed to work overload, management failure, and office and resource deficiencies. The Employment Court found that the Department of Corrections had not taken reasonable care to avoid exposing Mr Gilbert to unnecessary risk of injury to his physical or psychological health. The Department had not provided a safe or healthy workplace.

The Department of Corrections argued that Mr Gilbert's stress and ill-health was not caused necessarily by workplace stress but by a pre-existing cardiac condition which was exacerbated by smoking, pre-existing depression, or outside stresses. One of the real difficulties in workplace stress cases is to try and disentangle the various causes of stress in a person's life. It can also be difficult to separate out the effects of work related stress and any pre-existing health issues of the person.
The Employment Court found that it was the Department's failure to provide a safe working environment that had directly led to Mr Gilbert's condition. The Court found that the Department had failed to put in place any occupational health and safety plan, despite a clear need for action. The Department failed to provide peer review and support, or establish an appropriate psychological counselling service. Furthermore, the Department failed to act on persistent internal reports that there were high levels of sick leave and absenteeism within the service. Most significantly, even after Mr Gilbert began having serious health problems, the Department failed to support Mr Gilbert in his rehabilitation and did not decrease his workload or address the problems which had caused the initial health deterioration. As a consequence, the Court ruled the Department pay substantial damages to Mr Gilbert.

The Court of Appeal, as the highest court in New Zealand, has sent out a firm message that workers need to be protected from undue stress and its potentially harmful effect. Consequently, a whole new area of risk has opened up for employers. Although the Health and Safety in Employment Act 1992 sets out that an employee must themselves take all practical steps to ensure safety while at work, an employer must set up proper systems that try and prevent stress and deal with any problems.

Employers need to be mindful of their responsibilities to manage health and safety issues. They would be sensible to carry out regular audits on employees' working conditions. Employers should monitor sick leave and absenteeism records. They should also keep a check on overtime hours to ensure that they are not excessive.

If it is appropriate, employers might also set up employee assistance programmes, or counselling services to help the employees. Employees should be reminded of ways to minimise or reduce stress in the working environment, and encouraged to raise any concerns early on so that problems can be addressed and resolved quickly.

If an employee does raise concerns over stress, then an employer may consider a sabbatical, transferring the employee to other work, redistributing work, providing extra assistance for a time, arranging treatment or counselling, providing buddying or mentoring schemes to encourage confidence, and so on. Of course, each case depends on the individual circumstances and on each occasion it is necessary to consider how reasonable it is to expect the employer to do any of these things.

An employer has a duty to provide a safe and effective working environment, and to have a relationship of trust, confidence and fair dealing between it and its employees. Workplace stress is under the spotlight, and employers would be wise to try and minimise pressures in the work environment as much as possible to prevent unnecessary stress, rather than have to take retrospective action. Certainly, both employers and employees benefit if a healthy and supportive working environment is established and maintained.

This is a general summary only and should not be taken as a substitute for specific advice.