Court of Appeal dismisses unjustified disadvantage claims by employee with mental health issues

The Court of Appeal has dismissed the unjustified disadvantage claims raised against an employer by an employee suffering from mental health issues.

In FGH v RST [2023] NZCA 204, the applicant sought leave to appeal from a decision of the Employment Court, dismissing three unjustified disadvantage personal grievances that she raised against her employer. The Court of Appeal declined to grant her a leave to appeal because her proposed questions are "essentially challenges" to factual findings.

Unjustified disadvantage

The case stemmed from three incidents:

• The applicant's posts on her social media page, which her employer considered as maligning the applicant's colleagues and a lawyer it had retained in previous litigation involving the applicant.
• The applicant had allegedly barged one of her team members.
• The applicant allegedly implied to a colleague that she was having suicidal thoughts because of her work role and disclosed that she had been self-harming.

Before these incidents, the applicant incurred long absences from work due to an ongoing mental health problem.

The employer sent the applicant an allegation letter, advising that it would investigate the three incidents—the social media posts, the alleged barging incident, and the alleged inappropriate communications with colleagues about suicide and self-harm.

The applicant raised three unjustified disadvantage actions before the Employment Court, which all relate to the following decisions taken by her employer:

• commencing a disciplinary process about the social media posts
• requiring the applicant to take sick leave following communications about suicide and self-harm
• proceeding with a renewed disciplinary process

The Employment Court dismissed the personal grievances and made various findings, including the finding that the employer had acted by the employment agreement, its Code of Conduct, and its disciplinary policy, which set a high standard for procedural fairness. The employment court also said that private social posts are not immune from disciplinary action by an employer. The court also found that the employer tried to establish a professional and thorough process to deal with the concerns raised by the social media posts.

Right of appeal

The Court of Appeal emphasised that the right of appeal is limited to appeals on questions of law and is subject to a leave requirement. Leave may be granted if, in the court's opinion, the proposed question of law is one that "by reason of its general or public importance or for any other reason, ought to be submitted for determination."

The applicant advanced four proposed questions of law. However, the court found that none of the proposed questions meets the test for granting leave. The court said that, to a significant extent, the submitted questions advanced by the applicant are essentially challenges to factual findings.

In its decision, the court stressed that "not only must a proposed question be a question of law, it must also be seriously arguable. In our view, the questions in this application are plainly not." The court ultimately dismissed the applicant's application for leave.