When anything about rugby hits the news, people take note. Recently, New Zealand Rugby (NZR) released their findings into the review of the Black Ferns team culture and environment and it made headlines. What led to the NZR review provides important learnings for all employers, when faced with employees suffering from mental health issues.
The Black Ferns
The NZR case concerned Te Kura Ngata-Aerengamatea, a Black Ferns player (an employee) who had been with NZR for eight years. The team’s end-of-year European tour did not go well; stuck in quarantine with allegedly no support, Ms Ngata-Aerengamate made the following Instagram post about the coaching culture:
“My confidence and self esteem was so low that it made me play like I was walking on egg shells and was constantly too scared to express myself I let the words over the years get to me, the words became the flesh.”
The post prompted internal and external demands for an inquiry, with NZR commissioning the review. By all accounts, Ms Ngata-Aerengamatea’s behaviour was out of character and the review found that her reaction to the announcement that she would not be in the playing 23 for a test match was extreme. For herself as a player, Ms Ngata-Aerengamatea said her reaction was a culmination of eight years of being negatively impacted and not feeling valued. The review found that NZR provided minimal support to Ms Ngata-Aerengamatea and her mental health / wellbeing was essentially ignored. The review found that the situation was not well managed or monitored and should have been escalated. Her resultant downward spiral (and Instagram post) eventually led to her health being taken seriously.
Learnings from NZR case for all employers
So, what can employers learn from Ms Ngata-Aerengamatea’s experience with NZR?
An employee who suffers a mental breakdown as a result of work stress or issues may have a claim against their employer for failing to provide a safe work environment and breaching its duty of care. In this respect, an employer will be liable for any foreseeable consequences where an employee suffers a mental breakdown resulting from work stress or issues.
Specifically, under the Health and Safety at Work Act 2015 (“HSWA”), a person conducting a business or undertaking (“PCBU”) has a primary duty of care to ensure the health and safety of its workers, any workers whose activities are influenced or directed by the PCBU, and other persons who may be put at risk from work carried out by the PCBU. As part of this duty, PCBUs must have in place systematic and effective ways of managing stress as a workplace hazard so workers and others are not exposed to a risk of harm caused by stress. The primary duty is limited to the extent that the PCBU has (or would reasonably be expected to have) the ability to influence and control matters to which the risks to mental health relate.
This doesn’t mean that an employer should be able to know or foresee that an employee is going to have a breakdown. What does it mean though?
‘Stress’ – What employers can look out for
Stress isn’t defined in the HSWA but WorkSafe refers to it being the result of the interaction between a person and their work environment. For the person, it is the awareness of not being able to cope with the demands of their work environment, with an associated negative emotional response. Stressors are events or circumstances that lead to someone feeling that physical or psychological demands are about to exceed their ability to cope.
Indicators that employees in your workplace may be experiencing workplace stress include the following:
- large number of employees with low morale;
- high absenteeism;
- high employee turnover;
- poor employee relations;
- low quality work or productivity;
- high (or rising) accident and illness rates;
- high (or rising) client complaints/loss of business;
- increase in the use of EAP (employee assistance programmes)
- increase in the number of personal grievances raised;
- increase in complaints of stress;
- poor workplace communications;
- lack of control over speed and scheduling of work;
- no formal employee participation system for occupational safety and health;
- high work rate or time pressure;
- unpredictable or changing work patterns/unsociable hours;
- under-utilisation of skill/tedious work; and
- responsibility beyond the individual’s capacity.
Failure to manage workplace stress
WorkSafe inspectors will investigate stress complaints and can examine the management of workplace stressors. Any failure to minimise or eliminate the risks associated with stress in the workplace may result in a prosecution under the HSWA, an improvement or prohibition notice being issued, or a personal grievance being brought (by the employee) against the PCBU.
Redesign the work and method of work: Prevention
The best thing an employer can do to help employees with workplace stress is to adopt a preventative approach. Identify and mitigate the risks to employee wellbeing in the workplace by considering the following areas:
Protect: Identify risks to mental health and wellbeing, eliminate or minimise at source where practicable and design in protective factors.
Support: Provide access to appropriate workplace and clinical support, monitor the effectiveness of controls and review for continuous improvement.
Foster: Develop the mental health and wellbeing capability of individuals and teams.
Reclaim: Restore the mental health and wellbeing of individuals and teams.
Implementation of the above areas will look different in every workplace but the common threads will always include actively listening to employees and being open minded to suggestions when they are made.
Women’s World Cup success?
Following on from the NZR review, the Black Ferns head coach has resigned, with former All Blacks coach Wayne Smith being appointed to head a new set up for the team. With the Women’s World Cup being less than six months away, lets hope that Ms Ngata-Aerengamatea’s experience becomes something of the past.
This article was prepared by Senior Associate Kirsty Wallace. If you would like further information, advice, or assistance please contact a member of our specialist employment or health and safety teams.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
