Month: May 2024

Employers and employees alike may experience mental illness at any stage in their lives.  Given the length of our working lives – the likelihood of it happening during our working life is high.  With that in mind, it is important to foster workplaces where talking about mental health is a safe and natural thing to do.

In this article, Tazmyn offers tips to equip employers to support their employees in the workplace and understand their obligations if an employee is experiencing mental health challenges.

What does the law say?

Firstly, an employer has an obligation to take all reasonably practicable steps to prevent harm in the workplace.  If all reasonably practicable steps are not taken, and an employee suffers harm, they may have grounds to bring a personal grievance under the Employment Relations Act 2000 (the ERA).

Under the Health and Safety at Work Act 2015 (the Act), employers are referred to as a PCBU (“person conducting a business or undertaking”).  A PCBU has a paramount obligation to ensure the health and safety of their employees.  The “health” in health and safety includes mental health.

Looking at case law, FGH v RST [2018] NZEmpC 60 provides some key points around an employer’s obligations regarding an employee with mental illness, specifically in cases where performance is in question.  Where an employee discloses a mental health matter, an employer should first understand the matter prior to entering any form of disciplinary process.  In that case, it was not enough that the employer had offered extra support to the employee – the employer had a positive obligation to seek further information.  The employee stayed employed, and in 2021 raised further personal grievances after a disciplinary process.  The Employment Court ruled in favour of the employer this time as they had engaged a psychiatrist to assess whether the employee was fit to work and able to participate in a disciplinary process.  The learning from the second proceeding is that if independent advice declares an employee fit and able to participate in a formal disciplinary process, and there are no other perceived risks to be addressed, an employer can proceed with caution.

What can employers do?

A mental health/wellbeing/Hauora policy is an essential part of ensuring that employers are upholding their obligations and most importantly, looking after the people of their business.  Policies should set out what type of support is available, including guidance for employees around how to navigate or approach things or who to go to for a confidential kōrero.

When it comes to mental health, Hauora, and wellbeing, unfortunately no one (including employers) have all the answers – as much as we might wish we did.  What we do know is that creating a healthy, safe, and supportive environment is fundamental.  He aha te mea nui o te ao?  He tāngata, he tāngata, he tāngata.  What is the most important thing in the world?  It is people, it is people, it is people.  A Māori proverb and reminder that it is people who are at the centre of what we do – let your workplace be one that is equipped to support its people when times get tough.

Our workplace team at McCaw Lewis are available to discuss and assist with reviewing/drafting mental health and Hauora policies for your workplace.  The team are also available to assist you in any employment process where an employee is affected by mental health where support and a cautious approach is required.

Tazmyn is a Solicitor in our Workplace Team and can be contacted on 07 958 7467.

A personal grievance is one of the main ways for employees to make a complaint against their employer if they believe their employer has acted unfairly or unreasonably towards them.  Grounds for personal grievance cover a number of actions including, but not limited to:

• an employer failing to follow a fair and reasonable process in respect of action taken against an employee, such as changing the employment terms and conditions, or making their role redundant;
• an unjustified dismissal, where an employee feels there was no reason for their dismissal, or that the process followed by their employer was not fair or reasonable;
• a constructive dismissal, where an employee felt they had no option but to resign as a result of the employer’s actions; or
• an unjustifiable action that disadvantages the employee. This ground encompasses a range of actions that are not reasonable or taken in good faith, the key factor being that the action causes disadvantage to the employee by affecting their working conditions or employment.

To raise a personal grievance, you do not need to explicitly state to your employer that you are raising a personal grievance.  You just need to clearly tell your employer what the problem is.  Detail what they did or did not do to cause the grievance (for example, what was done incorrectly), what impacts has it had on you and what you would like them to do to remedy your grievance.

Generally, this is best done in a letter to keep a paper-trail in case issues arise further down the track.  It would also be helpful to check if your employment agreement provides for a personal grievance process so you can follow that.

Time limitations

If you wish to raise a personal grievance, you must raise it within 90 days of the employer’s action that caused the grievance or when the action first came to your attention e.g. if your employer told you they were dismissing you.  If you are raising a personal grievance regarding sexual harassment, you have up to 12 months from when the harassment occurred or when you noticed it occurring.

If it has been more than 90 days, you may still be able to raise a personal grievance if your employer agrees.  It is not often that we see employers agreeing, so it is key to stick to the time limitations if possible.  If your employer doesn’t agree, you can apply to the Employment Relations Authority (ERA), to be allowed to raise a personal grievance after the 90-day period.  However, there is a high threshold you will need to meet as granting a personal grievance past the time limitations can only be done in exceptional circumstances as outlined in section 115 of the Employment Relations Act 2000.

Options/Alternatives

In the first instance, employees should first talk to their employer to resolve problems.  Trying to resolve the problem informally can sometimes help keep the employment relationship positive.  This is important if you wish to continue working at your job and want to work through the problems collaboratively with your employer.

Mediation is another alternative to consider if matters cannot be resolved informally.  This entails an independent mediator stepping in (if both parties agree) to assist in resolution by encouraging discussions, outlining the overlying and underlying issues, and providing possible solutions that work for both parties.  This is a free service provided by the Ministry of Business, Innovation and Employment.

Alternatively, you could raise a personal grievance with the ERA directly.  It is highly likely the ERA will refer you to mediation in the first instance if you have not tried it already.  You have three years to begin proceedings in the ERA after your personal grievance was first raised with your employer.

A tip for employers.  If an employee has raised with you a personal grievance, it is important for you to take their grievance seriously and to follow a fair and proper process in resolving their grievance in a constructive and timely way.  It is important to listen to your employee’s grievance, to keep an open mind and avoid predetermination of anything before you have all the facts and information.

If you are needing advice around raising a personal grievance, whether you have grounds to raise one or even looking for alternatives to resolve matters before it escalates to that point, McCaw Lewis has an excellent workplace team who can assist you.

Cree Ratapu is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 808 6069.