'You've got a duty to provide a safe working environment', lawyer says
Earlier this month, Māori health services provider Raukura Hauora o Tainui was ordered to pay $36,000 to an employee who was bullied after the Employment Relations Authority (ERA) ruled that the employee was unjustifiably disadvantaged in her work.
Jourdan Piacun, a former personal assistant to the CEO of Raukura Hauora o Tainui, had concerns about the chief executive’s behaviour when she began her employment, as well as the conduct of the HR manager – who was briefly acting as CEO in September 2018 – and a member of the Board of Trustees who was CEO from October 2018 until February 2019.
She alleged:
- instances of the first CEO swearing at her and ridiculing her
- the HR manager spoke about her in "derogatory terms”
- the board-member-turned-CEO made inaccurate accusations and derogatory remarks against her.
The ERA ruled that Piacun was indeed bullied at work, stating that the behaviour she was subjected to was repeated, unreasonable and led to psychological harm.
"She was undermined and lost confidence and she became anxious and stressed to the point she was unable to work and had to take time off," the ERA said in its ruling.
How to address claims of bullying at work
Matthew Austin, senior associate in the employment law team at Simpson Grierson, emphasised that employers should take bullying complaints seriously.
In instances where an employee submits such a complaint, Austin said HR teams should follow the processes they have in place around bullying and trying to obtain as much information as possible, “especially in writing if the complaint has been made verbally for example,” he told HRD New Zealand.
“And get a handle on the behaviour that is considered to be bullying or is otherwise unreasonable. It's always good to have that starting point of understanding exactly what the issues are and what may be needed to resolve those issues, as well as understanding the outcomes that the complainant may wish to see.”
Austin added that not all complaints about bullying behaviour “may warrant a full-blown investigation.”
“Sometimes it may be sufficient – depending on the seriousness of the potential allegations and what the complainant may want – to try to address things informally,” he said. “Like talking to the people who are involved to remind them of expectations about their behaviour and the potential impacts that that may have on people. And sometimes that may result in the complainant and the respondent being brought together to have some sort of restorative process.
“But equally, if the allegations are really serious and there's lots of people involved, that may warrant a more formal approach being taken such as an investigation into the into the concerns.”
Legal repercussions of bullying in the workplace
For employers who don’t appropriately handle bullying complaints, there are risks involved with legal claims brought against them, Austin said.
“Those claims usually fit into a couple of different camps,” he said. “The first one would be a breach of contract claim because employees have an implied term of their employment that an employer provides a safe working environment. So employees can bring claims of breach of contract when they believe an employer has failed to provide a safe workplace.
“Similarly, they could raise a personal grievance for unjustifiable disadvantage. And that might be on the basis that an employer has failed to provide a safe working environment or whether they feel the employer has responded appropriately to any complaints or concerns that have been raised.”
Another risk is that an employee may resign and claim that they've been constructively dismissed.
“Usually the key point is whether there's been, in bullying circumstances, a breach of duty by the employer which is sufficiently serious to make it foreseeable that an employee would resign from their employment,” Austin said.
No need for formal complaint to investigate bullying
With WorkSafe NZ identifying bullying as a workplace hazard that can cause harm, Austin said employers are under an obligation to take reasonable steps to eliminate risks of it occurring.
“It's really important from an employer's point of view to get a handle on bullying within the workplace,” he said. “To have processes and procedures in place to proactively manage it and make sure that that sort of behaviour doesn't occur. But in circumstances where it does occur, that they have appropriate things in place to respond to it.”
Sometimes employers fall into the trap of thinking that they need to have a formal complaint lodged in order to investigate a bullying allegation, Austin said. Or policies may be drafted in a way that says if an employee wants an investigation, they have to file a written complaint.
“That is not usually how the authority or the courts may see it,” he said. “You’ve got a duty to provide a safe working environment and take reasonably practical steps to protect people from harm.
“That's something that you should be proactive about as an employer, is taking those concerns seriously, doing what you can to investigate them, even in circumstances where an employee might not want to undergo a formal process.”
Clear policies or codes of conduct
One of the first steps for employers to prevent workplace bullying is to have clear policies or a code of conduct that sets out expectations of behaviour, Austin said. And have a bullying and harassment policy as well which identifies the types of behaviour that could be considered bullying, he added.
“WorkSafe also recognises that there are task-related behaviours which can be considered bullying,” Austin said. “So, giving someone an unmanageable workload, excluding them from meetings, constantly shifting the goalposts in terms of expectations about their work, which can be seen as being indirect and not as clear.”
In addition, it’s about educating people in the workplace about what good behaviour looks like and having clear processes to report concerns if complaints do arise, Austin added.
“And making sure that you encourage a culture within the workplace where people feel comfortable speaking up if they see that sort of behaviour and calling it out if they consider it to be inappropriate,” he said.
