Two or three years ago, "stress" was the buzz word in employment law.
In fact, you might say that employment lawyers everywhere were very stressed about it.
A trilogy of successful stress claims (resulting in large awards of compensation for employees), and an amendment to the health and safety legislation to confirm stress as a potential workplace "hazard", combined to draw significant attention to this area.
Some commentators said that stress was destined to be the next workplace epidemic - an RSI for the new century.
But, apart from a couple of successful cases, there have been very few signs of an epidemic in this area. And a recent case gives support to the view that the floodgates of litigation may not be about to open.
The applicant in A v Child Youth & Family Services (Unreported, Employment Relations Authority, Wellington, 22 December 2005) had been employed by CYFS since 1998. Since 2001 she had worked as a social worker.
For several months in the early part of 2003 she took leave from her job to complete her Masters thesis. During this period of study leave she became ill. After she returned to work in July 2003 she took various periods of sick leave. The Authority's judgment records that during this time the applicant was suffering from a number of difficulties - including marital issues, and various family problems.
By the late part of 2003 things started to go wrong in the employment relationship. The employer raised a performance issue. For her part, the applicant presented a medical certificate confirming that she could only work limited hours, and was no longer suitable for "critical front line work".
In November 2003 the applicant presented a further medical certificate. This time, it indicated the existence of stress-related issues. After presenting the certificate, the applicant took no time off from work. Her employer took ten days to respond to the medical certificate. Finally, she left work on 4 December 2003 and never returned. She took sick leave until 12 January 2005, and was then given leave without pay until she was medically retired in April 2005.
The applicant brought a claim against her employer, alleging that it had caused or contributed to her stress-related harm. She sought compensation for her expected future losses (being the period which she expected to be unable to work).
On this claim, the applicant failed. The Authority found that, whilst her job involved inherently stressful work, the employer had not failed in its obligations to take reasonable care for her. It had provided her with adequate supervision. She had not previously raised any health issues around her job, and her workload appeared to be within the normal range. On this basis, the Authority concluded that the employer had acted reasonably in asking the applicant to do her job - and had not failed in any obligation to safeguard her health.
Further, the Authority expressed some doubts about causation. It said that other factors (particularly related to the applicant's personal and family life) were likely to have contributed to her condition.
On this basis, the applicant failed in her substantive claim. Put simply, the Authority found that the employer could not be held responsible for causing the employee's harm.
There was, however, more.
The Authority was critical of the 10 day period which had elapsed after the applicant provided her medical certificate in November 2003. The Authority said that the employer should have done better - and should have reacted quicker once it had been alerted to the seriousness of her condition. By failing to take the matter up more immediately, the Authority said that the employer had caused the applicant unreasonable distress - which, at that time, might have led her to a conclusion that her concerns had fallen on deaf ears. The Authority ordered the employer to pay her $15,000 to compensate for this distress.
This case serves to illustrate two significant things. First, even where an employee has legitimately suffered harm related to stress, an employer will not necessarily be automatically liable to pay compensation. The employee has to show that the employer failed in some aspect of its obligation to safeguard the employee from this harm - and, further, issues of causation may arise where there are other factors that may have caused the harm. Secondly, even where the employer is not responsible for causing the harm, it must react quickly upon becoming aware of it. In this case, the employer's delay led to the imposition of an award against it.