Mr O was employed as a senior car groomer, part of an in-house grooming service for a car dealership.  The dealership employed groomers from a variety of backgrounds, including prisoners re-entering the workforce, and individuals with learning disabilities or with autism or Asperger syndrome.

Mr O was asked to train a new groomer with Asperger syndrome (Mr A).  The employer met with Mr O and the other groomers to give them information about the syndrome, and the challenges that might be faced in training Mr A.  Mr O was also told that he could approach his managers with any issues that arose.

Mr O soon raised concerns about Mr A’s performance, but did not mention that training him was taking a toll on his own mental health, or that he had himself, some years before, suffered a nervous breakdown. 

In the months following Mr A’s employment, Mr O started taking leave to cope with his physical and mental exhaustion from having to train the new employee.  However, it wasn’t until some weeks later, after Mr A’s employment had been terminated, that Mr O told his employer that he had suffered a mental breakdown and that working with Mr A had been the cause.  Mr O went on leave again and then resigned without having returned to the workplace.

 Mr O was unsuccessful in his recent claim to the Employment Relations Authority that his employer had breached its obligation to provide him with a healthy and safe workplace (O’Flaherty v Landseer Investments Ltd t/a Andrew Simms Newmarket, February 2018).  The Authority confirmed that an employer has a clear responsibility to take all practicable steps to ensure the safety of its employees in the workplace.  This duty is implied into all employment agreements and is also reflected in the provisions of the Health and Safety at Work Act 2015; section 36 outlines the duties of a PCBU (a person conducting a business or undertaking).

However, everyone in the workplace has responsibility for safety, and employees also have duties while at work.  Section 45 states that one of those duties is that each employee must take reasonable care for his or her own health and safety.  As the case of Mr O illustrates, this includes reporting to management any concerns about their safety or well-being.  

Please contact our Wellington employment lawyers on 04 472 0020 to discuss in confidence any health and safety or workplace questions you might have. 

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