Statement By Health and Safety in Employment Amendment Act 3/4

Margaret Wilson Labour

Statement By Health and Safety in Employment Amendment Act

21 December 2001

Gilbert v Attorney-General in respect of the Chief
Executive of the Department of Corrections
(21 June 2000, Colgan J,
Employment Court, Auckland)

Background:
This was a successful personal grievance and common
law damages claim for breaches of an employment contract.

The plaintiff was employed by the defendant as a probation officer. Following
his retirement on medical grounds the plaintiff sued his former employer for
special, general compensatory and exemplary damages. The plaintiff claimed that
he was forced to resign at least 14 years before he would otherwise have
retired. The plaintiff claimed that his resignation was forced by multiple and
long-standing breaches by his employer of express and implied terms and
conditions of employment. Four factors were said to have created an unsafe work
environment: (i) work overload, (ii) failure to fill probation officer
vacancies, (iii) failure or refusal to address excess workload and (iv) failure
or refusal to address a pattern of rising staff absences through ill-health.

The plaintiff commenced employment in 1971 with the defendant's predecessor.
At this time there was concern among South Auckland probation staff about
workload levels. Guidelines had been negotiated but by the 1990s these were
frequently exceeded. The plaintiff did not seek promotion and the service
benefited considerably by this lack of advancement. The plaintiff became a
senior and highly effective probation officer, taking on a disproportionately
high level of difficult cases as a result. The evidence established that the
plaintiff had a greater than usual caseload of serious offenders being added to
in spite of the guidelines.

The Criminal Justice Act 1985 made changes to sentencing and therefore to
probation officers work. Rehabilitation of offenders was to be undertaken more
by communities with new probation officers being recruited to reflect the
cultural and social makeup of the community. More workload pressure was imposed
on experienced employees such as the plaintiff. The plaintiff considered that
the new system would lead to disaffection among experienced officers and to
problems with recruitment and retention. The plaintiff became actively involved
with the New Zealand Association of Probation Officers ("NZAPO") being elected
president in July 1992. He was a regular contributor to industry journals and
acted as an advocate making submissions on the need for qualifications, better
skilled staff and better supervision. In October 1992 he was reprimanded for
criticism of rehabilitation policy.

In the period 1990 to 1991 the plaintiff "acted up" as unit manager and
undertook additional supervisory and administrative duties. Three separate
offices in South Auckland were established with positions at the plaintiff's
office dropping below guidelines. The plaintiff became increasingly concerned
about the lack of professional supervision and support. The service was also
subject to financial constraints at a time of increasing workloads. Managers
were warned that increasing stress had been accumulating through workloads and
was manifesting itself in time lost through sick leave. The defendant admitted
that at relevant times departmental budgets for staff were set at between 12 and
15 percent below the average cost of a full staff for a financial year.

During 1994 and 1995 the plaintiff became progressively exhausted spending
annual leave sleeping and recovering energy. He cut back on outside interests
and did not seek re-election to the NZAPO after July 1995 when he reported to
its AGM. The plaintiff's report was critical of administration and referred to
staff burnout from chronic overload. The report described the situation at his
office as bizarre in that there were more vacancies than probation officers with
staff carrying case-loads of up to 140 instead of 50. In early 1995 the
plaintiff was admitted to hospital with chest pain. Angina was diagnosed for the
first time and the plaintiff began a programme of medication. On his return to
work he was asked to assume the position of acting unit manager. The plaintiff
raised issues of staff burnout and vacancies but despite an assurance that
vacancies would be advertised, this did not happen.

The plaintiff took sick leave from July to October 1995. On his return he was
certified by medical advisors to work only mornings and then on light duties.
Almost immediately the plaintiff was told that his sick leave was in debit and
he therefore worked full-time. In a NZAPO report the staffing situation in the
South Auckland districts was described as being at crisis point. By January 1996
an acting unit manager had been appointed to the position which had been filled
temporarily by the plaintiff. In mid-January the plaintiff was allocated
additional and urgent work. He consulted his doctor because of further chest
pain and dizziness. He was advised to immediately retire if his condition was
not to worsen dramatically.

The plaintiff was then 50 years of age, with a substantial mortgage. He took
further sick and annual leave and consulted a psychologist under the
department's Employee Assistance Programme. He returned to work in February 1996
and was expected to undertake a full caseload. In spite of the plaintiff's
explanations of his circumstances and that he had been medically advised that he
was unfit for work, the plaintiff's unit manager was unsympathetic and said that
the department could not afford to carry anyone. Later that day the plaintiff
put his decision to resign in writing. A medical certificate from the
plaintiff's general practitioner stated that he had coronary artery spasm,
haematuria and depression. During his last week of work the plaintiff was again
admitted to hospital suffering from exhaustion. In early April 1996 he was
formally advised that his medical retirement had been agreed to.

Following his resignation the plaintiff had heart surgery in October 1997. In
August 1998 he was assessed as being 90 percent disabled. The Court heard
evidence that the plaintiff's reaction to stress was a major factor underlying
his development of coronary artery disease. The plaintiff was a moderate to
heavy smoker, especially at times of heightened stress. The Court accepted
evidence that the smoking risk, as a contributor to heart disease, reduced the
intensity of another risk factor, stress. The Court heard evidence that the
plaintiff's job characteristics were conducive to his state of "vital
exhaustion" and increased in him the risk of coronary heart disease. By way of
affirmative defences the defendant argued that the plaintiff's own actions
contributed to any loss or damage suffered. It was argued that the plaintiff
failed to advise his managers or his concerns about the nature or extent of his
workload and contributed to his loss by requesting difficult cases involving
violent and/or sexual offenders. The defendant also argued that by not
acknowledging or disclosing to his employer, the existence of a long term
depressive illness, and choosing to carry on his work contrary to Criminal
Justice Act changes, the plaintiff caused stress to himself.

The Court held:
The collective employment contracts governing the
plaintiff's employment contained an express term incorporating the good employer
provisions of the State Sector Act 1988. A good employer was to operate a
personnel policy requiring good and safe working conditions. The collective
agreements also required the defendant to comply with the Health and Safety in
Employment Act 1992 (HSE Act). The plaintiff's claim was not statute-barred by
s14(1) Accident Rehabilitation and Compensation Insurance Act 1992 as his
condition was not a "work injury" or "accident".

The existence of five distinct implied terms were accepted. The defendant
would: (i) not conduct itself in a manner calculated or likely to destroy the
relationship of trust, confidence and fair dealing, (ii) take reasonable care to
avoid exposing the plaintiff to unnecessary risk of injury or further injury to
physical or psychological health and in particular provide a safe system of
work, (iii) take reasonable care not to cause the plaintiff injury by reason of
the volume, character, nature or circumstances of the work, (vi) would be a good
and considerate employer, especially in dealing with the plaintiff's concerns in
relation to workplace health and safety and (v) would provide a working
environment and management processes that were reasonable so that undue stress
would not be caused to the plaintiff.

The defendant's affirmative defences were rejected. The allegation that the
plaintiff suffered from a long-standing depressive illness was not accepted.
While the plaintiff may have had idiosyncrasies of personality, these did not
indicate a pre-disposition to the alleged long-standing and significant
psychiatric illness claimed by the defendant. The existence of such an illness
and its effects would have been inconsistent with the proven long lasting, high
quality of his work and participation in associated professional activities. As
to the allegation of resistance to change, the plaintiff was not so resistant to
the Criminal Justice Act 1985 and its operation that he caused or contributed to
his losses or injuries.

The plaintiff was unjustifiably constructively dismissed. His resignation was
in response to the defendant's breaches of contract. The evidence established
that the plaintiff's workload was excessive for his circumstances in 1995 and
1996. While the plaintiff did not discuss his health problems with his immediate
manager before July 1995, there were other indicia of those problems that
repeatedly came to the notice of the employer. The defendant failed to lighten
the plaintiff's workload after his return from sick leave. The defendant failed
to provide a safe working environment under the HSE Act. The plaintiff had
established that the psycho-social factors related to his work environment were
a major cause of his coronary artery disease and was the predominant factor in
the development and deterioration of this condition which resulted in his forced
medical retirement. The plaintiff's injuries arose, not only from stress
necessarily inherent in his work, but from avoidable additional pressure of
workload, office dysfunction and inadequate resources.

The injuries and losses suffered by the plaintiff were foreseeable
consequences of the defendant's breaches of contract. Such were the
long-standing and repeated warnings given to the defendant by different people,
including senior managers, that it was aware of the inevitability of ill-health
among probation officers generally and the plaintiff in particular. After 1995,
especially, it was on notice of these consequences. The defendant could not
claim that the plaintiff had not mitigated his losses. The evidence established
the unlikelihood of future employment for the plaintiff. It was accepted that
the plaintiff was 75 percent disabled.

The defendant's obligations under s6 HSE Act were to take all practicable
steps to ensure the safety of employees and to provide a safe working
environment. The defendant's health and safety policies did not identify stress
as a "hazard" or "significant hazard" in terms of the HSE Act. No steps were
taken to control it by elimination or monitoring. The defendant failed to
monitor the health status of its employees even after it was aware of harms
suffered by them. The defendant failed to report that the plaintiff had suffered
"serious harm". There was no hazard identification or monitoring in 1995-1996 as
required by ss7-10 HSE Act in spite of clearly identified high patterns of sick
leave.

The question of causation of or contribution to the injuries suffered by the
plaintiff turned on the sufficiency of the nexus or links between the
defendant's undoubted breaches of contract and the harms suffered by the
plaintiff. There was little or no doubt that the defendant, as employer, was
repeatedly and over a long period in breach of a number of contractual
obligations in the health and safety field. It was established on the balance of
probabilities that the plaintiff's workplace conditions caused his loss of
employment by so causing or contributing to his ill-health that he was unable to
continue at work.

As to loss of income, but for the breaches of contract/unjustified dismissal,
the plaintiff would have continued to work for the balance of his working life.
There was no actuarial evidence before the Court to enable lost remuneration to
be fixed. Compensation for lost income could either be agreed between the
parties or be subject to a further hearing. General compensatory damages of
$75,000 for humiliation, anxiety and distress were appropriate. It was
reasonably foreseeable that injury to the plaintiff's physical and psychological
health would cause financial loss, not only in terms of medical costs, but also
life expectancy, quality of life, and mental distress. Reimbursement of $14,000
for medical expenses was awarded. Compensatory damages of $50,000 for loss of
career, loss of employment status, employability and future marketability were
appropriate. Exemplary damages were assessed at $50,000. The defendant's
breaches were repeated, serious and continued over several years.

Remedy:
Application granted; Compensation for lost income to be
agreed or subject to further hearing; General compensatory damages for distress
($75,000) ; Compensatory damages for loss of career ($50,000) ; Exemplary
damages ($50,000) ; Medical expenses ($14,000) ; Costs reserved

Reproduced with the kind permission of Brookers
Ltd.