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Raising mental health issues early allows employers to help ease workplace stress

23 July 2015


It is often the case that the black dog of depression is born from no one facet of a person's life

Readers may be familiar with a recent opinion piece by corporate high flyer Nick Baber.

Nick Baber was a director of the professional services firm KPMG. Baber suffered from depression.

Baber bravely told his workplace of his mental health issues. Happily, Baber was overwhelmed by his colleagues' positive response.

Many thanked him for raising the issue and confided in him their own mental health issues.

Baber's opinion runs contrary to the opinion of another high profile personality – Ruby Wax.

Wax advised against transparency with employers saying that: "They can't fire you for mental health problems but they'll [find] another reason".

So whose advice should be followed? Two New Zealand employment cases give some guidance on this matter.

A mental health nurse was dismissed after a long battle with depression. While this may seem unfair at first glance, the DHB who employed him can only be commended for their attempts to address these issues.

The nurse commenced sick leave in March 2008. After the employee had been on sick leave for several months, the DHB sought a report from a specialist occupational physician on the nurse's capacity to return to work.

The physician relied on a psychiatric report which stated that the nurse remained unfit for work primarily due to "depressive illness".

The report stated that if the employee was to return to work other employment issues between both parties needed to be resolved.

The DHB made attempts to resolve these matters including offering alternative positions and requesting what specific steps the nurse wished the DHB to take in order to facilitate their return to work.

In October 2008, the DHB advised the nurse that if they did not receive this information from him they would be unable to keep his position open indefinitely due to the impending busy Christmas period.

After the DHB received what it considered an inadequate response from the nurse, they gave notice that their employment was to be terminated.

The nurse brought a claim for unjustified dismissal but was unsuccessful. The Employment Relations Authority concluded that the DHB had undertaken a range of steps to engage with the nurse on these issues, including attending two mediations and offering alternative positions.

It found that the nurse's response to the DHB's attempts to have him return to employment were unhelpful, did not provide a constructive basis to move forward, and did not articulate with any particularity what his perceived impediments to returning to work were, and how they might be addressed.

The authority ultimately concluded the DHB's actions in terminating the employment relationship were ones a fair and reasonable and employer could take.

While this DHB can be commended for their effort to address an employee's mental health issues (while ultimately unsuccessful) another government service cannot.

A social worker for the Children and Young Person Service (CYPS) brought a successful personal grievance against her employer.

The social worker was responsible for supervising a team of other social workers who assessed the risk of certain children being abused.

The social worker experienced considerable difficulty in her role as a result of being understaffed and facing an "ever growing unallocated cases list" which placed a considerable burden on the social worker.

Despite her devotion and dedication to her work, the workload was far beyond her control.

The social worker began to suffer from stress, anxiety and depression. Medical evidence supported that the work environment contributed to her depression.

The social worker prepared several memoranda raising these issues with CYPS management but to little avail.

Her work situation did not change and the matter came to a head after she suffered a "major health collapse".

The social worker was forced to take medical retirement at the age of 47.

The social worker brought a claim to the Employment Court where it was held that CYPS had breached its contractual duty to avoid the "reasonably foreseeable ill-health consequences" by failing to take "reasonable practical steps" to provide a safe system of work.

Depression is a complex beast and it is often the case that the black dog is born from no one facet of a person's life.

However, given the significant place employment occupies in our lives, it may often be a cause, in part, for mental health issues when they arise.

In my experience, clients often suffer from depression or anxiety as they struggle with their employment relation problems.

It is sad to see that both these cases concluded with an employee losing their job. However an important lesson to take away is that an employer is expected to help where mental health issues are related to the workplace, and so for that matter is the employee.

I encourage employees to raise their mental health issues with employers where it may impact on their work.

By doing so, an employer is able to take steps to help alleviate an employee's distress where this is possible.

Similarly, I encourage employers to facilitate a culture where people can freely talk about these problems.

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

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