Mental Health Day or Can't Handle the Jandal

26 July 2017

David BrowneFor all the very recent media interest in staff taking a mental health day a cursory Google search indicates the idea has been around for a few years at least. In 2013 Stuff featured a story which said taking a mental health day can improve one’s productivity in the workplace. Before that back in 2003 the government established something called the Work-Life Balance Project which sought to recognise and confirm the economic and social benefits of getting the mix right. Among other things the conclusion of the project’s steering group found that “each person needs to find their own desired (work-life) balance.”

As it occurs there would appear to be just one Employment Relations Authority decision and no court cases which even mentions the phrase “mental health day” and given the media’s attention on the topic perhaps it is now worth reviewing the outcome of this particular matter. The employee involved had claimed a mental health day in support of constructive dismissal grievance. She was unsuccessful in meeting the high threshold for that type of action.

The employee resigned from her job as a Customer Service/Marketing Manager with a company in Auckland in January 2013. She had held the role for about a year and a half. The company she worked for imported and sold footwear from South America being a type of jandal. The employee claimed problems began in January 2012 when the original Marketing Manager left which meant she then reported directly to her employer who also happened to be the sole director of the company.

Around October 2012 the employer who had been overseas discovered the company website was out of date potentiality adversely impacting jandal sales. She believed website maintenance was the employee’s responsibility and on her return called a meeting to discuss concerns with staff involved. After the meeting and apparently without having followed a proper process the employee was issued with a warning for poor performance. The employee also claimed the employer was checking up on her work after hours, though a concern about that was never raised by the employee at the particular time.

By December 2012 internet sales of jandals were down in part due to a lost sponsorship opportunity which the employee fully accepted responsibility for in an email to other staff. Unfortunately the relationship continued to be fraught and the Christmas Party which included an overnight stay at the Britomart Country Club only served to raise more concerns with the employee claiming she was adversely affected when an extra bed had to be brought in to the penthouse suite and a bottle of perfume gifted to her by the employer was apparently occasioned by an unwelcome comment.

At this point one might be wondering when the claimed “mental health day” enters the picture considering the status of the relationship was apparently not improving. Around this time the employee also raised a concern being that as she was the only employee who did not speak Portuguese used by other staff in the business and as a result she felt “out of the team” unless a remark was specifically addressed to her in English. An incident in early January 2013 involving a malfunctioning stapler where the employer allegedly yelled in frustration in front of visiting sales reps led the employee to seek alternative employment.

Then on 14 January 2013 the employee informed the warehouse manager that she would not be attending work that day as she was taking a “mental health day”. On her return to work the employee told her employer she was suffering stress and had informed the warehouse manager of her absence because she was not comfortable speaking face to face with her boss. The employer’s retort allegedly made at that time being “I am how I am, if you don’t like it you know where the door is” was denied.

Before attending a job interview in January 2013 the employee realised she attached the wrong file to an email sent to a South American jandal supplier and duly alerted her employer. However the employer accepted responsibility for that incident saying she assumed the correct file was attached to the email she vetted and did not but should have opened the file to ensure it was the approved updated version of the marketing plan the employee attached.

Soon after that the employer appointed someone to replace the original jandal Marketing Manager who had left the year before. Believing the appointment of a Marketing Manager was a devaluation of her role amounting to a demotion the employee accepted alternative employment and resigned. Curiously two months before raising her grievance claiming constructive dismissal the employee wrote in her letter of resignation, “I sincerely thank you for my employment and opportunities provided to me in this time.”

Stepping through each of the alleged incidents, including the warning letter, after hours checks of paperwork, lost sponsorship opportunity, Christmas function at Britomart, language differences, stapler incident, emailing the wrong file and the appointment of the new Marketing Manager the Employment Relations Authority had no problem finding the employee had not been constructively dismissed.

In relation to the use of sick leave the Authority said that while the employee alleged stress on 21 and 22 January 2013 and informed the employer she was suffering from a stomach upset no such reason was provided for the claimed “mental health” day on 14 January 2013. The Authority also said the employee had failed to notify the employer of the impact her work concerns were having on her health with the result being the employer was denied the opportunity to take corrective action.

From that brief analysis then it would appear that the Authority and the current legislation would support a day off work to sort one’s mental health if there is a reasonable explanation and the employer is offered an opportunity to address any work related concerns.

While the alternative title to this piece is offered tongue in cheek mental health is obviously important and the workplace has a role to play in supporting the mental health of staff. In the first instance when self-management isn’t producing the expected result and in keeping with the obligations under the Employment Relations Act employers should speak with employees about their concerns. Following that it is recommended employers provide staff access to an Employee Assistance Programme. Where serious immediate concerns present in the workplace the employer should ask the employee if there is someone they can contact on the employee’s behalf, perhaps a family member or a friend. In some circumstances the employer may personally take the employee to A and E or notify the police if the potential for personal harm is perceived.


David Browne | Solicitor


Legal Team


Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 |

David Browne | Solicitor | 03 456 1812 | 021 225 6938 |

Angela MacKenzie | Solicitor | 03 218 7962 | 021 756 809 |

Grant Walker | Advocate | 03 455 5165 |

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