In a recent judgment, Mr and Mrs Cronin-Lampe v Melville High School, the Employment Court awarded the two claimants $1.8 million (collectively) in damages as a result of the School’s breaches of employment obligations including health and safety obligations.

Background

Mr and Mrs Cronin-Lampe were employed by the School as counsellors during a period (1996 to 2011) when there were around 32 deaths in the community including student suicides, fatal crashes, terminal illness, and murder. The Cronin-Lampes assisted students, staff, and the wider community in managing the crisis response. They claimed they were overworked, under resourced, under supervised, and worked in an environment that strained professional relationships. In 2012 the Cronin-Lampes were diagnosed with PTSD.

Decision

The Employment Court found that the School knew or ought to have known about the impact the Cronin-Lampes’ work was having on them. The Court then considered damages for breach of contract claims and also remedies under the Employment Relations Act, awarding whichever was the higher. The causes of action for breach of contract were:

• breach of implied terms at common law;
• breach of implied terms under Health and Safety in Employment; and
• breach of the implied and express terms of the teachers’ collective employment agreement.

Key allegations included workload issues, training and professional development issues, managing and monitoring stress levels, adequacy of supervision and resourcing, failure to provide time off and cover during absence.

In considering foreseeability of harm and risk, the Court noted that “hindsight” was not permissible. The Court found that the Ministry of Education guidelines for school boards relating to their health and safety obligations, combined with codes of practice and the obligations set out in the applicable collective employment agreement, meant there was a clear and foreseeable risk of workplace stress which gave rise to an obligation to be proactive in identifying potential hazards, including mental fatigue and traumatic shock.

The Court also commented on the substantial overlap between personal grievance claims and the contractual causes of action. For example, disadvantage claims for failing to provide cover for time off, bullying allegations, and issues raised with how these bullying allegations were handled. The Court found that the School did not act or take steps that a fair and reasonable employer would have taken in all the circumstances.

The School pleaded in its defence the statutory bar in the ACC legislation to Mrs Cronin-Lampe seeking damages because she had cover under the legislation for mental injury. However, the Court determined that the essential elements of the exclusion clause (s21B) were not made out and did not act as a bar to Mrs Cronin-Lampe’s claim for damages.

Turning to the issue of non-economic loss, the Court considered previous awards in Gilbert and Bricknell and adjusted for inflation. The Court awarded $130,000 for distress to compensate for past, present, and ongoing mental harm suffered by Mrs Cronin-Lampe and $97,500 for Mr Cronin-Lampe. In considering the award for personal grievances, the Court assessed this was in Band 3 and calculated as being $85,000 for Mrs Cronin-Lampe and $63,750 for Mr Cronin-Lampe and awarded the higher of the two.

For economic loss, the Court considered the awards in the Nutter v Telecom case. The judge considered seven years lost wages was the appropriate measure. There were also awards for lost earnings for superannuation contribution, the diminished value because of a sale of a property, a claim for lost rental property income, and expenses.

Comment

While this case might seem extreme – and it is – the case highlights the need for employers to be responsible for their employees. A key takeaway is employers need to carefully monitor health and safety risks which includes not only the work being performed by the employees, but their workload, stress levels, and mental health.