It’s time for WorkSafe to work harder to protect mental health

WorkSafe recently did something quite novel: it issued an improvement notice to Te Aroha College, informing the school that it had breached health and safety laws by failing to prevent psychosocial risk to its staff.

This notice came in the wake of a number of complaints received by WorkSafe about staff wellbeing at the school, specifically in relation to uncontrolled rumours about two teachers that ultimately led to their resignations. The school has been told it must take measures to deal with these health and safety issues by 2 December 2021.

We use the term novel, because when it comes to concerns about workers’ mental health, WorkSafe is generally (as stated in its website) “unlikely to intervene in one-off cases”.

Under the Health and Safety at Work Act 2015 (HSWA), a person conducting a business or undertaking (PCBU) – that includes all employers – must ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, or carry out work influenced or directed by the PCBU. It is important to note that the HSWA defines health to include both physical and mental health.

Despite the clear legislative intent, WorkSafe has come under fire in recent years for its ongoing failure to prosecute any case relating to harm arising from breaches to a workers’ mental health.

While WorkSafe has an array of guidance on its website in relation to mental wellbeing; for example, methods for identifying, mitigating and preventing bullying, and strategies for initiating conversations about an employee’s mental health, this speaks to WorkSafe’s preference to invest in an educative approach on matters of mental health and safety. Such an approach allows for more resources to be pooled into taking substantive action on more ‘straightforward’ cases, i.e. those pertaining to physical health and safety, but leaves cases involving mental health comparatively neglected.

Instead of waiting for WorkSafe to prosecute employers under the health and safety jurisdiction, employees have the option of raising personal grievances against their employers for breaches to their health and safety in the employment law jurisdiction. However, the purpose, responsibilities and potential legal outcomes under each respective jurisdiction differ greatly.

For example, while litigation will always be inherently adversarial, in the Employment Relations Authority employees are expected to take on employers themselves (or, if they can afford it, with the assistance of a legal representative), whereas in the District Courts WorkSafe shoulders the necessary prosecutorial work, and employees can participate through the medium of victim impact statements if they choose to do so.

With WorkSafe itself estimating that as many as one in three Kiwis report workplace bullying each year, it is hard to argue against the disappointing reality that many people are falling through the cracks. That includes those who do not wish to bear the emotional and financial burden of facing their employer in court.

What about Australia?

Across the ditch, Australia’s equivalent of WorkSafe (which our system is actually modelled off) regularly prosecutes employers for failure to protect mental health, often in the context of bullying and harassment.

In October 2021, Wyndham Clinic Pty Ltd was prosecuted for failing to provide a safe system of work to control the risk of bullying behaviour in the workplace. The bullying conduct occurred between June 2014 and March 2016. It was instigated by CEO Peter Bailey and directed towards an employee, and included:

  • verbal abuse, including the use of profanities;
  • telling her to look for another job; and
  • telling her that some people do not like her and found it hard to work with her.

Wyndham Clinic had policies and procedures in place to address discrimination and harassment. However, the policies and procedures did not specifically address bullying and the policies and procedures failed to prevent the bullying behaviour or eliminate or reduce the risk to health and safety of employees caused by such behaviour. There was also no mechanism in place to assist employees subjected to, or witnessing bullying behaviour, to raise concerns regarding the risks to health and safety caused by such behaviour.

The bullying behaviour and the failure by Wyndham Clinic to provide and maintain systems of work that were safe and without risks to health resulted in employees being exposed to the following risks to their health and safety: feeling worthless, belittled, fragile, angry, hurt, annoyed, humiliated, embarrassed, fearful.

Wyndham Clinic Pty Ltd pleaded guilty to the charges. It was fined $60,000 and ordered to pay costs of $19,630.70.

Such outcomes are validating for victims as they affirm that mental safety is of equal importance to physical safety.

What should happen next?

Of course, prosecution isn’t always the answer. The improvement notice issued to Te Aroha College is a welcome first step. Further substantive action in a similar vein would show that WorkSafe is taking mental health genuinely as seriously as physical health. This could look like:

  • Regular audits and investigations in workplaces to check for compliance with mental health and safety duties;
  • Issuing compliance notices for failure to adequately protect worker mental health; or
  • Issuing infringement notices with a payable fine to reflect the gravity of non-compliance with duties to protect mental health.

We can remain cautiously optimistic while we wait and see whether WorkSafe will up the ante, catch up to Australia and treat mental health and safety with the level of urgency and attention that it deserves.

For the time being, we would advise employers to revisit their health and safety policies and ensure they are doing their best to address risks in both the physical and mental realm.

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