Mental health and multiple mistakes

David Burton, an employment law barrister, looks at a recent case involving the University of Canterbury and a senior lecturer and the implications of the employer to consider physical and mental health.

Under the Health and Safety at Work Act 2015, employers have a duty to eliminate risks to health and safety, so far as is reasonably practicable. Alternatively, if it is not reasonably practicable to eliminate them, the employer must minimise those risks so far as is reasonably practicable. Health is defined in the Act as meaning physical and mental health. This essentially requires that employers protect employees against psychological harm and must accommodate employees affected by mental health or disabilities.

Failure by an employer to provide a workplace that accommodates health and safety requirements is grounds for an employee to bring a claim of unjustified disadvantage or potentially unjustified dismissal. In addition, employers may potentially find themselves investigated by WorkSafe New Zealand where a business has failed to manage significant mental health risks.

Mental health condition

The recent case of Scott v Vice Chancellor of University of Canterbury demonstrates that employers should take care not to stigmatise mental impairment. Dr Scott was awarded substantial sums for lost remuneration and compensation for the humiliation and loss of dignity she suffered.

The University of Canterbury was found liable for having unjustifiably disadvantaging and unjustifiably dismissing a senior lecturer with bipolar mood disorder. Dr Scott had been employed by the University for 19 years when she was dismissed for medical incapacity and serious misconduct. Her dismissal followed two formal warnings and a long period of enforced sick leave. Dr Scott wanted to work and provided expert medical opinions confirming her fitness to resume duties. The University, however, was concerned Dr Scott was a risk to herself and others and could bring the employer into disrepute.

Breach of duty of good faith

Dr Scott raised personal grievances claiming she was unjustifiably suspended and unjustifiably disadvantaged when her IT access was removed. Dr Scott claimed the University’s failure to accept the medical advice that she was fit to return was a breach of the duty of good faith and that she was the subject of discrimination on the grounds of disability. Dr Scott also claimed the warnings given were unjustified actions causing her disadvantage, and that her dismissal was unjustified.

The lessons from the case are important because a significant number of employees experience mental impairment or illness at some stage in their lives.

The University maintained that its concerns about Dr Scott’s mental health and conduct were those of a fair and reasonable employer. It considered it had followed a fair and reasonable process in addressing those concerns, and termination of employment was justified in all the circumstances.

The Employment Relations Authority found the University had unjustifiably dismissed Dr Scott and that its actions in placing her on sick leave and taking away her IT access had disadvantaged her. It also found the formal warnings unjustified, and that the University had failed to follow fair process and treat Dr Scott fairly and reasonably. It awarded Dr Scott around 18 months of lost wages and compensation of over $50,000.

…mental impairment or illness should be viewed and accommodated in the same way as any physical injury or illness is managed.

Multiple failures

The lengthy decision outlines numerous failures on the part of the University. The University failed to maintain an open mind towards Dr Scott and genuinely consult and listen to her views; nor acknowledge Dr Scott as a competent and intelligent person with a valid perspective; nor give due weight to specialist medical reports or other evidence in Dr Scott’s favour that did not accord with its predetermined view; nor respect Dr Scott’s right to maintain some privacy over her medical records and be given a fair assessment; nor appreciate the significant impact its detrimental actions were having on Dr Scott’s ongoing health and wellbeing. The University had acted based on its fear of Dr Scott’s bipolar mood disorder and viewed Dr Scott as a liability.

The lessons from the case are important because a significant number of employees experience mental impairment or illness at some stage in their lives that may affect their employment occasionally. While mental impairment or illness should be viewed and accommodated in the same way as any physical injury or illness is managed, that is sometimes easier said than done. The employee may not be thinking clearly or rationally. Sometimes it is difficult to engage with the employee or their support network (and that can be hindered or prevented by privacy issues). Sometimes the employer needs to deal with conflicting diagnoses or prognoses from professionals. On a pragmatic level, these days it seems to take ages to obtain appointments for assessments or treatment with qualified professionals.

Scott v Vice Chancellor of University of Canterbury [2021] NZERA 311

David Burton is an employment law barrister. David has over 30 years of employment law experience in New Zealand and overseas. His expertise is recognised by his peers. For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia. For more info, visit www.burtonlaw.co.nz or email david.burton@burtonlaw.co.nz