STRESS AS AN STRESS AS AN OCCUPATIONAL OCCUPATIONAL

HAZARDHAZARDLEGAL CASES THAT GIVE GUIDANCELEGAL CASES THAT GIVE GUIDANCE

© DR JOHN C MCEWAN 31 MARCH © DR JOHN C MCEWAN 31 MARCH 20042004

THE OBLIGATION TO THE OBLIGATION TO PROVIDE A SAFE PLACE OF PROVIDE A SAFE PLACE OF

WORKWORK• WE WILL BE JUDGED IF WE KNEW OR WE WILL BE JUDGED IF WE KNEW OR

OUGHT TO REASONABLY HAVE OUGHT TO REASONABLY HAVE KNOWN OF A HAZARD TO HEALTH.KNOWN OF A HAZARD TO HEALTH.

• HAVE WE ADEQUATELY PREPARED HAVE WE ADEQUATELY PREPARED OUR STAFF FOR THEIR TASKS AND OUR STAFF FOR THEIR TASKS AND THE HAZARDS TO BE EXPECTED IN THE HAZARDS TO BE EXPECTED IN THEM?THEM?

• HAVE WE TAKEN REASONABLE STEPS HAVE WE TAKEN REASONABLE STEPS TO AVOID HEALTH ENDANGERING TO AVOID HEALTH ENDANGERING WORKLOAD OR POLICIES?WORKLOAD OR POLICIES?

WHEN EXPOSED TO WHEN EXPOSED TO TRAUMATRAUMA

• Seedsman(2000) NSW Case PTSD Seedsman(2000) NSW Case PTSD condition while working with child condition while working with child abuse unit.abuse unit.

• Ms Seedsman was exposed to significant Ms Seedsman was exposed to significant trauma and so the prospect of harm trauma and so the prospect of harm occurring to her was reasonably occurring to her was reasonably foreseeable. Had some support be given foreseeable. Had some support be given quickly and appropriately the harm quickly and appropriately the harm would not have eventuated, or been so would not have eventuated, or been so severe.severe.

TRAUMA – THE NZ CASETRAUMA – THE NZ CASE

• Brickell (2000) Police Video – 275+75Brickell (2000) Police Video – 275+75• In a culture of “can do”, and “don’t In a culture of “can do”, and “don’t

complain” help had neither been sought complain” help had neither been sought nor offered.nor offered.

• Other outside factors increased stress but Other outside factors increased stress but were “seen as a common enough feature of were “seen as a common enough feature of everyday working life”.everyday working life”.

• Police were found not to have provided Police were found not to have provided support that was reasonable, nor acted in a support that was reasonable, nor acted in a situation where the hazard of PTSD was situation where the hazard of PTSD was foreseeable.foreseeable.

THE DANGER OF NOT THE DANGER OF NOT FILLING VACANCIESFILLING VACANCIES

• Gilbert 2000 Probation ServiceGilbert 2000 Probation Service• Benge and Hallinan 2000 PoliceBenge and Hallinan 2000 Police• LIABILITY FOR CREATING MENTAL LIABILITY FOR CREATING MENTAL

OR PHYSICAL HARM = OR PHYSICAL HARM = COMPENSATIONCOMPENSATION

• ACCESSIBILITY AND PRIVACY OF ANY ACCESSIBILITY AND PRIVACY OF ANY COUNSELLING SERVICE CRUCIALCOUNSELLING SERVICE CRUCIAL

• EXCESSIVE WORKLOADS DUE TO EXCESSIVE WORKLOADS DUE TO FAILURE TO FILL VACANCIES = CASEFAILURE TO FILL VACANCIES = CASE

DUTY TO DUTY TO COMMUNICATECOMMUNICATE

• ““It must be objectively reasonable and It must be objectively reasonable and foreseeable. To me that means that it foreseeable. To me that means that it must have been foreseeable that any must have been foreseeable that any normal employee would have developed normal employee would have developed symptoms of mental illness if treated in symptoms of mental illness if treated in the way that the plaintiff was here”.the way that the plaintiff was here”.

• If management had little or no reason to If management had little or no reason to suspect that the person is stressed they suspect that the person is stressed they can do no more.can do no more.

THE RADIO NZ VS THE RADIO NZ VS SNOWDON CASE 17 JULY SNOWDON CASE 17 JULY

20032003• THIS CASE CHALLENGES BOTH STAFF THIS CASE CHALLENGES BOTH STAFF

AND MANAGEMENT TO WORK AND MANAGEMENT TO WORK TOGETHER TO ACHIEVE RETURN TO TOGETHER TO ACHIEVE RETURN TO WORK – BACKED ALSO BY HSE ACT.WORK – BACKED ALSO BY HSE ACT.

• AN EMPLOYER CANNOT REQUIRE AN AN EMPLOYER CANNOT REQUIRE AN EMPLOYEE TO UNDERGO MEDICAL EMPLOYEE TO UNDERGO MEDICAL EXAMINATION WITHOUT CONSENT.EXAMINATION WITHOUT CONSENT.

• REQUEST FOR MEDICAL INFORMATION REQUEST FOR MEDICAL INFORMATION IS LEGITIMATE TO ASSIST IS LEGITIMATE TO ASSIST REHABILITATION AND A SAFE RETURN REHABILITATION AND A SAFE RETURN TO WORKPLACE.TO WORKPLACE.

• BOTH MUST OPERATE IN “GOOD FAITH”.BOTH MUST OPERATE IN “GOOD FAITH”.

THE PROBLEM THE PROBLEM EMPLOYEEEMPLOYEE

• Urbani vss Gillions and Sons 2003 – no caseUrbani vss Gillions and Sons 2003 – no case• Narcissistic personalityNarcissistic personality• Prone to exaggeration, fantasy, so that self Prone to exaggeration, fantasy, so that self

report was unsubstantiated by others.report was unsubstantiated by others.• No connection between work and the No connection between work and the

psychological problems was established.psychological problems was established.• No complaints had been made at the time, No complaints had been made at the time,

nor any foreseeable problems identified, so nor any foreseeable problems identified, so no action was taken to remedy things.no action was taken to remedy things.

THE ABUSIVE THE ABUSIVE EMPLOYEREMPLOYER

• HABIBI VS ROSKILLY 4 JUNE 2003HABIBI VS ROSKILLY 4 JUNE 2003

• TRIAL PERIODS MUST BE RECORDED TRIAL PERIODS MUST BE RECORDED IN WRITING.IN WRITING.

• PROPER DISCIPLINARY PROCEDURES!PROPER DISCIPLINARY PROCEDURES!• NO ABUSIVE LANGUAGE!NO ABUSIVE LANGUAGE!• IF DOUBTS EXIST ABOUT IF DOUBTS EXIST ABOUT

QUALIFICATIONS THEY MUST BE QUALIFICATIONS THEY MUST BE ADDRESSED DECENTLY.ADDRESSED DECENTLY.