The Government’s 2019 Wellbeing budget shone a light on mental health issues in New Zealand.  As the Inquiry into Mental Health and Addiction (Te Ara Oranga) confirmed, current data suggests that one in five New Zealanders experience mental health or addiction challenges at any given time.

The Health and Safety at Work Act 2015 defines health as being physical and mental.  Employers as PCBUs under the Act (persons in control of a business or undertaking) have a primary duty of care to provide a work environment that is, so far as reasonably practicable, without risk to health and safety.

There is an increasing awareness of the importance of good mental health, both as risk management (and WorkSafe has signalled that it will look to start prosecuting in relation to mental harm, given the availability of information for employers about bullying/ harassment and stress), but also as being important for productivity, job satisfaction, and employee retention.

It is therefore important for employers to consider:

  • how to identify and manage risks to employees’ mental health; and
  • what to do if you believe that an employee is experiencing mental health difficulties.

We are going to post a series of articles on different aspects of this important area, but this article focuses on mental health issues that can arise during performance management and disciplinary investigations.

Once an employee has informed an employer (or an employer otherwise becomes aware) that the employee is stressed or suffering a mental health illness, then an employer has a duty to try to find out if this is being caused by the workplace or the employee’s working conditions.  If so, the employer must work with the employee to try to eliminate, or if that is not possible, minimise the problem which is impacting on the employee’s mental health.  An employer also has employment law obligations (statutory and under any employment agreement) to treat the employee in good faith, offer ongoing support, avoid discrimination, and meet statutory obligations in relation to sick leave.

In a 2018 employment case, FGH v RST, the employer, RST, commenced a performance management plan for one of its employees, Ms H.  When she did not meet the specified expectations, a disciplinary process was commenced against her.  A month later, an additional disciplinary process was commenced relating to inappropriate language used by Ms H towards her manager.

Ms H had told her employer she suffered from mental health disorders, including ADD and anxiety.  Ms H raised a disadvantage grievance asserting that her employer failed to provide a safe healthy workplace while managing her performance, on the basis that she was bullied by her managers throughout the process and that insufficient steps were taken to mitigate the risk to her health.  Although the Court concluded that the managers had merely raised legitimate criticisms which did not constitute bullying, it did find that the employer had failed to provide Ms H with a safe and healthy workplace.  The employer contended that it had taken all reasonably practicable steps to prevent harm to the employee which it foresaw at the time.  It said that it sought to accommodate Ms H’s illness by extending timeframes, postponing meetings, allowing her to move desks, offering her EAP, and giving her time to attend a gym.  However, the Employment Court held that because the process was causing the employee mental distress, the employer had a responsibility to seek further medical advice regarding the appropriateness of continuing with the performance process in light of the disclosed medical conditions.

The FGH v RST decision sets a high standard for employers in these challenging situations.  Where mental health issues are raised, an employer cannot rely on the employee to provide further medical information.  Rather, the employer is obliged to work with the employee to obtain medical advice which is sufficient in all the circumstances.  The employer needs to be actively and adequately informed of any and all health conditions, and to be conscious of this information while undertaking the process to discharge their health and safety obligations.

For more information and timely advice, please contact us by phone: (04) 4725579 or via email:  .



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