Your rights: Protecting health of workers

Q. I live in a small town and the factory is the backbone of the community. In the process of what this factory does there are substantial dust emissions, and the workers believe there may be gas emissions as well, although we have no proof of this.

The organisation does not argue that there are dust emissions, but whenever the matter is brought up it says that dust is inevitable, and that engineering and chemistry departments have cleared the process as safe. The company's solution is for staff to wear masks.

We are all concerned, but fear losing our jobs if we speak up, and alternative employment options in this town are scarce. How should we approach this?

A. The company has a number of obligations under the Health and Safety in Employment Act. It must manage hazards, and the gas emissions could be a hazard if they can potentially cause harm (harm includes any illness, injury and physical or mental harm caused by work-related stress). In short, if the gas emissions are making anyone sick then they are likely to be a hazard.

The company must take all practicable steps to eliminate hazards or isolate them if they cannot be eliminated. Isolation involves ensuring that you and everyone else working at the plant has limited exposure to the hazard.

The company must monitor everyone's exposure and provide all workers with information about their exposure to the hazard. Simply providing masks would probably not be considered as taking all practicable steps to ensure you are safe.

Employers have to give employees a reasonable opportunity to participate in improving health and safety. If your factory has a health and safety committee, or at least a staff safety representative, I suggest that you discuss your concerns with them. If you belong to a union you should also consider approaching a union representative for help.

It is not a smart move to fire a worker because they have raised a health and safety concern, and it is certainly not a justifiable reason for dismissing someone. I appreciate that you may be worried, but no one can be legally dismissed for bringing a health and safety concern to their employer's attention.

If the company will not listen to health and safety concerns then, as a group, you may consider a work stoppage. You could also bring the issue to the attention of an occupational health and safety inspector employed by the Department of Labour.

However, you will need to take professional advice about this as the Protected Disclosures Act, which protects whistleblowing employees, has specific steps which you must follow. I work for a company which has recently had huge growth in business. With the growth came extra stress.

* * *

Q. Last November I requested help, stating that the workload was growing out of control and that one person could not maintain it.

The company did not react, instead waiting until it got busy. But then there was no one to employ who had the necessary experience, or so it seemed.

Now my back and neck have gone out because of stress, my marriage is suffering and I hardly ever get to see my daughter.

At many stages I have communicated that the workload is too much for me but nothing has been done to help.

My question is: who is responsible? Am I entitled to any sort of stress leave? Do I have to leave just so I can get rid of the stress this has put me under. What rights do I have?

A. You have the right to be protected from being exposed to undue stress at work. Your employer will be breaching its contractual and statutory obligations under the Health and Safety in Employment Act if it fails to take all practical steps to ensure that you do not suffer any physical or mental harm caused by work-related stress.

You have the right to require your employer to take steps to minimise and reduce your stress to a safe level, and your employer will be potentially liable if it fails to do so. The Employment Court has made very large awards in cases where employees became so stressed that they could not longer work.

Do not leave. Leaving your job might remove one cause of stress but create another.

You are entitled to time off if you are unfit to work because of work-related stress. You should consult your doctor and obtain a medical certificate declaring you unfit for work. It would certainly be reasonable for your employer to give you paid time off for stress leave. Your employer should immediately start to put in place processes to help you. Ideally, those processes would be in place on your return.

Work Info

* Chris Patterson is a barrister specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.

Send us an employment law question

(Put "Your rights" in the subject line.)