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Employers - Responding To Workplace Bullying

22 August 2019

While workplace bullying has been front and centre in the media lately, few New Zealand businesses are prepared to handle a complaint being made in their organisations. As a manager or employer, how prepared is your business to respond to a workplace harassment or bullying complaint?

 

What Is Workplace Bullying?

Worksafe says bullying is “repeated and unreasonable behaviour directed towards an employee in the workplace that creates a risk to their health and safety.”

Examples of workplace bullying could be micromanagement; repeatedly nit-picking at your work on a daily or hourly basis and telling you it’s no good. If there are genuine employee performance concerns, there are other, more helpful processes that can be followed. Micromanaging is not one of them.

Other examples of bullying are repeated name calling, or repeatedly setting you up to fail with unreasonable workloads or deadlines. Health and safety at work covers much more than something falling off a shelf and hitting you. The Health and Safety at Work Act also covers psychological safety and mental wellbeing.

Responding To A Bullying Complaint

So, a bullying complaint has been made. What happens next? Ideally, you would already have a process set out in your employment agreement, in an employee handbook, or another document everyone in the workplace has access to. Even if you have clearly set-out policies and procedures in place, and especially if you don’t, we highly recommend seeking specialist legal advice before taking action. There are many pitfalls that can complicate matters, and the consequences of getting them wrong can be severe.

In this hypothetical situation, let’s assume a complaint has been made and a week later the complainant emails you and asks, ‘What’s going on? The person is still picking on me, nothing has changed and I’m scared to come to work!’

As an employer, you need to take that second cry for help very seriously, and take prompt action. As an employer, you have a duty to act in good faith, make that situation a high priority, and provide some concrete answers. In fact, you have a legal responsibility under the Employment Relations Act and the Health and Safety at Work Act to make sure your workplace is safe for everyone, and answer that call.

Creating A Safe Work Environment

In addition, you may need to offer any employee that makes a complaint access to workplace support, counselling, flexible working hours, re-worked rosters so the accused and accuser don’t have to work together. All these options can be used to relieve anxiety and stress in the workplace while an investigation is underway. You may also need to consider these options if the allegations can’t be proven, or you make the decision not to take action against the accused. 

Case Study: How Not To Respond To Workplace Bullying

For example, we’ve recently advocated on behalf of a woman who made a complaint against someone in her workplace. Like most Kiwi businesses, she was part of a small team working in small town New Zealand. Interestingly, she was not the only complainant. Two others in her workplace had made similar complaints about similar unacceptable behaviour from the same the same employee. The accused then took the complaints made against him to the wider community and used them to slander his accusers, labelling them ‘tattle tales’ and assassinating their characters. While this is going on, all parties were still expected to work together, which left the complainants very scared for their safety. Sadly, her employer had no plan in place for managing their interactions to make sure all parties felt safe until the issue was resolved.

By not having a plan in place, that employer is open to several workplace claims. If there are bullying guidelines set out in the employment agreement, there could be a Breach of Contract claim. There could also be a breach of Good Faith under the Employment Relations Act. There could also be claims under Unjustified Disadvantage in the workplace, or even a full WorkSafe investigation if there is a physical assault. If the complainant feels the breach of obligations has gone too far, they could resign and bring a Constructive Dismissal claim.

As an employer, sticking your head in the sand around workplace bullying issues is no longer an option. With all of the media attention, more employees are building up the courage to speak out. With all of the information available to employers on the MBIE and WorkSafe websites around handling bullying complaints, ignorance is not a defence.

At Godfreys Law, we act for both employees and employers to make safer workplaces around Greater Christchurch and Canterbury. Within our employment law team, we have decades of experience helping businesses navigate these difficult issues, and can guide you through to resolution. If you want to be proactive and create bullying policies and procedures, or you want to know how to respond to a complaint that’s been laid, we’re here to help. Contact our employment law team on 03 366 7469.

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