Earlier this month NZ Rugby released the findings of a review of the Black Ferns’ team culture and environment.
The review was precipitated by an Instagram post by long serving Black Ferns player Te Kura Ngata-Aerengamate in which she laid bare the traumatic events that had led to her suffering a mental breakdown during the 2021 Northern Tour.
The Terms of Reference for the review were clear that its purpose was “not to ascertain whether Te Kura’s allegations are true”, but to focus more broadly on the culture and high performance environment.
Player’s Association head Rob Nichol has now confirmed that Ngata-Aerengamate is engaged in a “culturally appropriate and confidential dispute resolution process with NZ Rugby”.
If matters are not resolved through that process, however, Te Kura may well have a claim against NZ Rugby for its failure to provide a safe work environment and breaches of its duty of care. In this regard an employer may be legally liable for any foreseeable consequences where an employee suffers a mental breakdown as a result of work stress or issues.
In Ngata-Aerengamate’s case, the review found that her reaction to the announcement that she would not be in the playing 23 for a test match was extreme and “out of all proportion”. Some of those present said it as sounded like someone had died and described it as a grief response.
Those who witnessed the incident thought there must be something more to it, and they were right. The breakdown was the culmination of eight years of being negatively impacted and not feeling valued (other than for the cultural aspects she brought to the team – including leading the waiata and haka).
What happened next has been well documented, and so does not need to be repeated here. In short, however, after providing some initial light touch support, Ngata-Aerengamate was expected to get on with it, and her mental wellbeing appears to have been effectively ignored. The down ward spiral led to her post, and it seems to her issues finally being taken seriously.
There are no doubt many learnings for NZ Rugby and one hopes that they will take seriously and implement the numerous recommendations in the Report. However other employers should also take notice of this case and consider what they would do if a long serving employee started acting out of character or responding in an unbalanced or distressed manner.
Whilst such behaviour may be a result of the employee having other personal issues, where the response is an extreme one (as Ngata-Aerengamate’s was), and indicates significant emotional distress, an employer has an obligation to seek to understand the reasons for it, and to what extent it may be work related.
This is not to say that an employer should be able to anticipate whenever an employee has a mental breakdown. Often there are no obvious trigger events or visible behaviours which signal to an employer that an employee is suffering from potential mental health issues.
However there are things that employers should look out for including; whether the employee has become withdrawn or is acting out of character; whether the employee has become “short” with colleagues; whether the employee is taking more sick leave than usual; whether the employee has made any comments about not being able to cope or needing support; whether the employee’s appearance or routines have changed; whether the employee appears to be responding to events in a less balanced way than usual; and whether the employee has raised concerns about or is suffering from work pressure and over load.
All or any of these triggers should alert an employer to the possibility that an employee may be vulnerable and need additional support.
The Courts have said that employers are not expected to “cocoon” employees, or wrap them up in cotton wool – but having been put on notice that an employee is struggling, an employer should not carry on business as usual or continue to pile on the pressure. Further, even if the employer did not see it coming, if an employee does suffer from a heightened emotional response or breakdown, it should not be ignored or swept under the carpet.
Aside from demonstrating a complete lack of care and empathy, turning a blind eye (as NZ Rugby appears to have done in Ngata-Aerengamate’s case) may result in expensive legal claims against the employer.