Employer responsibility regarding psychosocial hazards at work

In the recent decision Cronin-Lampe v Board of Trustees of Melville High School [2023] NZEmpC 221, the Employment Court awarded two former school counsellors nearly $1.8 million in damages after finding the school breached its health and safety duties under the Health and Safety in Employment Act 1992 (the HSE Act) – the predecessor to the Health and Safety at Work Act 2015 (HSWA).

The Court’s decision highlights an often-overlooked dimension of work health and safety – the management of psychosocial hazards at work, not just physical hazards; and the protection of workers from psychological harm. The case also serves as a reminder of an employee’s ability to raise work health and safety breaches through a breach of contract claim.

Factual background

The proceedings commenced in 2012, with the plaintiffs, Ronald and Kathleen Cronin-Lampe, raising several causes of action including claims under the HSE Act.

Mr and Mrs Cronin-Lampe were guidance counsellors at Melville High School, supporting the school and the community through numerous traumatic events.

They provided extensive counselling, guidance, pastoral care, and ongoing assistance to students at the school, including many students at risk of self-harm and suicide. They also provided assistance to school staff and the wider community. Over the around 15 year-period that Mr and Mrs Cronin-Lampe worked at the school, there was a total of 32 deaths of students, staff, and students’ whānau, either through suicide or other unexpected sudden tragedies. As their cell phone numbers were distributed across the school, Mr and Mrs Cronin-Lampe were ‘on call’ 24/7 and often had to work after hours supporting their local community.

 The work took an extreme toll on their health. In late 2011/early 2012, both Mr and Mrs Cronin-Lampe were diagnosed with Post-Traumatic Stress Disorder (PTSD) and left their roles as a result.

Causes of action

Mr and Mrs Cronin-Lampe brought three overlapping contractual causes of action:

1.       Through the first cause of action, they claimed that the school had breached its common law duty to take reasonable steps to ensure their safety.

2.       Through the second cause of action, Mr and Mrs Cronin-Lampe claimed that the school had breached specific terms implied into their employment contracts by the common law. These included terms that the Board would take all reasonable care not to cause Mr and Mrs Cronin-Lampe physical or psychological injury by reason of their work; and that it would take adequate steps to monitor their workload and their ability to deal with the demands placed on them (in particular emotionally and psychologically).

3.       Through the third cause of action, Mr and Mrs and Cronin-Lampe claimed that the school had breached the health and safety duties implied into their employment contracts under the HSE Act. They argued the school had breached these duties in a number of ways, including by:

·         failing to monitor Mr and Mrs Cronin-Lampe’s caseload and ensure it was manageable and not causing physical or mental harm;

·         failing to ensure they had regular time off from the demands of on-call work;

·         failing to protect them from traumatic incidents;

·         failing to ensure they had appropriate support to address the foreseeable trauma they suffered;

·         failing to provide a safe system of work to ensure their mental and emotional health and wellbeing; and

·         failing to identify and manage hazards or harms in the workplace, and to ensure they did not suffer as a result of those hazards or harms.

The Employment Court’s decision

To determine whether the school had taken reasonable steps to ensure Mr and Mrs Cronin-Lampe’s health and safety, the Court was required to consider the school’s knowledge as to the foreseeability of the relevant harm and its risk. This is measured against the knowledge reasonably available at the time to employers mindful of their responsibilities.

The Court considered that, over the period Mr and Mrs Cronin-Lampe worked at the school (1996/1997 to 2012), the extent of health and safety duties had developed – there was an increased understanding that employers must consider the impact of workplace hazards on employees, including workload stress.  In 2002, the definition of “harm” in the HSE Act was amended to expressly include “physical or mental harm caused by work-related stress”. Shortly after those amendments, the Ministry of Education released guidelines for school boards on complying with obligations under the Act, which highlighted that work-related stress and fatigue were now harms or hazards that needed to be managed. Against this context, the Court was satisfied that, by 2007 at least, schools would have been aware of the foreseeable risk of workplace stress and their obligations to be proactive in identifying potential hazards, such as those arising from mental fatigue.    

The Court then turned to consider the definition of “all practicable steps” in the HSE Act, and whether the school had systematically identified relevant hazards and taken all practicable steps to discharge its obligations.  The Court noted that the school was aware of the challenges of Mr and Mrs Cronin-Lampe’s work and the risks to their health and safety from the early stages of their employment. Following a cluster of suicides in the late 1990s, the school provided funding for Mr and Mrs Cronin-Lampe to attend three sessions with a psychologist. However, it did not offer to fund further sessions, and did not give the counsellors additional support after many further traumatic events occurred in the early 2000s and dramatically increased their workload.

In 2007-2008, the school established a health and safety work group, which identified workload stress as a hazard for staff but did not identify the particular hazards faced by the counsellors. There was also no evidence that any formal health and safety plan was implemented for them.

The Court found that, by late 2010, both Mr and Mrs Cronin-Lampe were vulnerable, and this was known or ought to have reasonably been known by the school. It found that the school had not been sufficiently responsive to the stresses caused by the traumatic events and the associated workload of Mr and Mrs Cronin-Lampe – stating that “a proactive approach was required in the circumstances.”

The Court referred to several “red flags” that should have prompted the school to address the issues Mr and Mrs Cronin-Lampe faced, including:

·         insufficient supervision;

·         difficulty accessing professional development;

·         relationship issues with other staff;

·         problems arranging time off; and

·         an unmanageable workload.

The Court was satisfied that the school had clearly breached its duty to systematically identify hazards arising from Mr and Mrs Cronin-Lampe’s work; to take reasonably practicable steps to ensure their safety while at work; and to eliminate, isolate, or minimise and monitor the hazards to which they were exposed. The Court stressed that an informed employer would have reasonably foreseen the risk that Mr and Mrs Cronin-Lampe would suffer serious mental or emotional harm if it failed to meet its health and safety obligations.

As the Court of Appeal confirmed in Attorney-General v Gilbert [2002] 2 NZLR 342, the Court in this case found that an employer’s duty to ensure the safety of its employees is implied into all employment contracts, and is informed by health and safety legislation.

The Court found that Mr and Mrs Cronin-Lampe had suffered mental harm in the form of PTSD as a result of the school’s health and safety breaches.

In its highest award of damages since 1992, the Court awarded Mrs Cronin-Lampe $829,355 and Mr Cronin-Lampe $962,962. The awards covered compensation for humiliation, loss of dignity and injury to feelings, in addition to economic losses (including lost income, lost superannuation and medical expenses).

Key takeaways

The Cronin-Lampes’ case is a reminder that:

·         While “psychosocial hazards” and “psychosocial risks” now seem to be buzzwords in the health and safety industry , the concept of managing psychosocial hazards in the workplace is not new nor recent. Obligations to manage psychosocial hazards and risks have been in place prior to commencement of HSWA.  

 ·         Mental health is an important part of a safe working environment. Psychosocial hazards include for example traumatic events, poor support, high workloads, high demands, and difficult working relationships.  They can create stress which may lead to psychological harm.

 ·         Employers and businesses need to be proactive in taking steps to identify and manage psychosocial hazards at their workplace. They need to incorporate controls into their practices and work design, rather than wait to be specifically alerted to an issue or concern by an employee or worker.

This case may be the impetus for positive change amongst New Zealand’s employers and businesses – increasing their understanding of psychosocial impacts on people at work to better support their mental wellbeing and protect them from mental harm. 

Article written by Anuja Mitra and Sanja Marin

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