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Employers ignore OSH concerns at their peril

10 December 2013

English batsman Jonathan Trott has returned home from the Ashes cricket series that is under way in Australia.

Trott has been one of England's most prolific run-scorers in recent years. However, he was dismissed cheaply twice by Australian fast bowler Mitchell Johnson during the first test match of the series.

Jonathan Trott

England coach Andy Flower has said that Trott's decision to leave the Ashes tour was because he was suffering from a long-standing stress-related condition. He said Trott needed time away from the pressure of international cricket to address his illness as "it is not the environment for that type of rest and recuperation".

Flower has, however, rejected suggestions that Trott should not have been brought on tour at all given the pre-existence of his illness. He claimed that systems and personnel were in place to support their squad members.

We can only speculate as to what effect Johnson's aggressive short-pitched bowling might have had on Trott's state of mind. However, Australian players probably didn't help his stress levels with their constant taunting, both on and off the field.

There is an element of irony about all of this. During the 1932/1933 Ashes series, often known as "Bodyline", the English were concerned that Don Bradman, generally regarded as the greatest batsman to ever play cricket, would bat them out of the series. To counter the threat Bradman posed, England captain Douglas Jardine used his fast bowlers to intimidate the Australian team with a barrage of short-pitched bowling aimed at their bodies and heads.

Trott is employed by the England and Wales Cricket Board (ECB) and were New Zealand law to apply, the ECB would have obligations to preserve the health and safety of its employees.

Some work is inherently dangerous and facing a torrent of short-pitched bowling from Johnson probably falls in that category. However, employers must always take reasonable steps to ensure the wellbeing and health of their employees, as shown by the case of Darlene Ringrose.

Some time ago, Ringrose began employment with an Australian company, Brazen Ltd, as a country manager. Brazen owned a chain of stores that traded as Bras N Things, which expanded into New Zealand in late 2004.

Ringrose launched into her new role with great enthusiasm. However, it quickly became apparent that her workload was unreasonable and that the support she was receiving from her employer was not sufficient. According to Ringrose, she was regularly working at least 60-hour weeks.

After just over a year in the new role, Ringrose was diagnosed by her doctor as suffering from burnout and was advised to take sick leave. Ringrose promptly relayed this to her employer, set out her concerns about her workload and made clear that she believed that her workload was the cause of her health problems.

Ringrose took just over a month of sick leave before returning part-time. However, it appears that when she returned, many of her concerns had not been addressed.

The pressure on Ringrose was only increased when her managers made a number of unfounded criticisms about her performance and that of the New Zealand operation. Still suffering from the effects of her stress, Ringrose resigned, having lasted a total of 16 months in the role.

Ringrose filed proceedings in the Employment Relations Authority against her former employer, claiming that she had been constructively dismissed as a result of its failure to provide a safe workplace.

The authority accepted the bulk of her claims. It concluded that the harm suffered by Ringrose was foreseeable and that her employer had failed to take reasonable steps to prevent it.

It also agreed that the extent of the demands placed upon Ringrose was the cause of her stress and that her resignation was a direct consequence of the treatment by her managers.

She was awarded $20,000 for hurt and humiliation, and lost wages.

Ringrose's case goes back some years now and readers will be aware that legislative changes in the area of health and safety are afoot, following, most notably, the Pike River mine disaster and the recent forestry industry fatalities. These changes will significantly strengthen the obligations on employers to ensure the wellbeing of their employees.

Trott's employer did the right thing in supporting his withdrawal from the Ashes series and giving him time to recover. At the end of the day, his health is what is most important. Clearly the ECB has systems in place to support employees suffering from stress in what for many is an inherently dangerous occupation. Other employers would be well encouraged to follow its lead. Employers who ignore health and safety issues raised by employees do so at their peril.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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