Wellbeing in the workplace

There is increasing awareness in Aotearoa about how mental health and the wellbeing of workers is a key ingredient in a productive workplace. With one in five New Zealanders experiencing mental distress or mental illness, it is necessary for employers and workers to be aware of their obligations to ensure individuals’ wellbeing and mental health is not detrimentally impacted by their work.[1]

This article summarises some key things employers and workers need to know when it comes to mental health and wellbeing at work.

Why is mental health and wellbeing important in the workplace?

Often when we think about health and safety we consider the risk of physical injury. Mental health and non-physical injuries can come as an afterthought in the health and safety realm. However, employers have the same responsibility to protect their workers’ mental health and wellbeing just as much as their physical safety.

Any person conducting a business or undertaking (also known as a PCBU) is required by the Health and Safety at Work Act 2015 (HSWA) to provide a safe and healthy workplace and as far as reasonably practicable, prevent or minimise risk of harm to its workers and people influenced by its work. PCBUs have a duty to ensure as far as reasonably practicable, the protection of the mental health of workers while working.

Protecting workers’ mental health and wellbeing not only benefits workers, it comes with several practical advantages for employers too, including: better staff morale, less absences, lower staff turnover, increased productivity and benefits to the overall image and reputation of the business.

What can happen if an organisation doesn’t meet their health and safety obligations?

If a PCBU does not comply with its health and safety obligations at law, it could result in personal grievances being raised by affected employees, or enforcement action by WorkSafe (including significant penalties).

The Employment Court case of Gilbert v A-G[2], while referencing the predecessor to the HSWA, illustrates the risk which organisations can be exposed to if they are not protecting their workers’ mental health and wellbeing. In Gilbert it was found Mr Gilbert was exposed to avoidable stress, with consequential harm arising from work overload, management failure, and office and resource deficiencies. The employer ‘failed to identify, eliminate, isolate or minimise and monitor the hazards to which Mr Gilbert was exposed and the additional, aggravated and avoidable stress he and others had repeatedly pointed out to the management of the office and the department’.[3] The Judge, relying on expert evidence, found Mr Gilbert’s burnout and exhaustion was a result of workplace stress and was a key cause of the rapid escalation of his heart condition.

On appeal, A-G v Gilbert[4], the Court of Appeal quashed the decision to award damages for loss of career and exemplary damages. However, the appeals against the judgment in all other respects were dismissed with the employer having to pay general damages of $75,000 for humiliation, anxiety, and distress, payment of lost earnings until retirement (for approximately 14 years until retirement) and to reimburse the employee for medical expenses. The Court however noted that an employer does not guarantee to cocoon employees from stress and upset, and an employer’s obligations will vary according to the particular circumstances.[5]

What should employers be looking out for?

Employers need to be aware of the risks and hazards workers might be exposed to in their roles. There are a number of different factors which contribute to a worker’s wellbeing and mental health, including their stress levels, workload, the presence of bullying and harassment and their overall job satisfaction.

Often there are warning signs which will signal to an employer that action should be taken to support a worker’s declining wellbeing or mental health. This can be signalled by a range of reactions, including a decline in quality of work, higher absenteeism, tearfulness or highly emotional responses that seem out of place.

What can employers do to support workers?

Having systems in place to support workers at these early stages and to identify warning signs can ensure workers feel supported, and things don’t escalate. These can include policies and procedures which provide for the monitoring of absenteeism and sick leave use. Surveys and wellbeing engagement is also a valuable tool which can be used to gain insight into worker needs.

Employers should have regular catchups with their workers to check in on how they are doing. If an issue is highlighted, the employer should consider whether, and what, support should be made available. In some instances, it may be necessary to vary the worker’s workload and offer more support (for instance more training, supervision or help from a co-worker, counsellor or mentor). It is common for employers to offer confidential and independent counselling services to employees through Employee Assistance Programmes (EAP). In other instances, it might be necessary to place the worker on stress leave or paid special leave (following consultation) to support them as a temporary measure.

Employers can support their workers’ wellbeing through preventative approaches such as offering flexible working policies and practices (including time off in lieu policies), providing extra leave and supporting positive work life balances.

Employers need to be responsive to issues as they arise in order to ensure workers feel confident their issues won’t go un-heard. This means providing meaningful and prompt responses to workers when they do raise concerns. This will encourage open communication channels and will enable workers to feel supported when they do raise issues.

If employers are able to facilitate a kaupapa of trust regarding mental health and wellbeing they can put strategies in place early and even prevent problems arising. To achieve this level of trust and confidence employers should have a culture of respecting sensitive matters which are shared by workers. Employers should have comprehensive privacy policies and procedures which ensure compliance with the Privacy Act 2020 so workers know their personal information will be handled appropriately.

What are a workers’ obligations for mental health and wellbeing?

Under the HSWA workers, like employers, have an obligation to take reasonable care of their own health and safety and that of others. This means workers also have a responsibility for their own mental health and wellbeing.

What can workers do to manage their mental health and wellbeing?

If workers have any concerns regarding their wellbeing or mental health, these should be proactively communicated to the employer as they arise. Letting matters dwell can cause further issues which may require workers to take sick leave, in circumstances which may have been preventable. If workers are honest and forthcoming in disclosing concerns regarding mental health and wellbeing, employers can ensure they are providing support as required.

Practicing healthy work practices is also a great way for workers to protect their wellbeing and mental health. Healthy work practices include:

  • Taking allocated breaks away from workstations, this includes not eating at work stations.
  • Stretching and exercising throughout the day.
  • Using annual leave to take a full break from work.
  • Using sick leave as and when required.
  • Engaging and participating in initiatives which encourage positive mental health and wellbeing.
  • Raising concerns with their employer as they arise.

Workers should also utilise the support available to them, including EAP, and should encourage co-workers to do the same, as and when required.

Employees can also contribute to a healthy workplace kaupapa surrounding mental health by supporting the confidentiality and the sensitivity of some matters. This means not participating in ‘office gossip’ and respecting when things are shared in confidence.


If you are considering how you can best provide support to an employee with mental health and well-being concerns in your workplace or business, or are wanting to ensure you have comprehensive policies, do not hesitate to contract the Dyhrberg Drayton Employment Law team for assistance.

Imke Kitchin, Lawyer and Annah Casey-Solly, Associate

[1] He Ara Oranga, Report of the Government Inquiry into Mental Health and Addiction, November 2018 at pg. [8].

[2] Gilbert v A-G [2000] 1 ERNZ 332

[3] Above n 2, at [8].

[4] A-G v Gilbert [2002] 2 NZLR 342

[5] A-G v Gilbert [2002], at [83].