Workplace bullying is a threat to the health and safety of employees and with the introduction of the new health and safety legislation, this has become a hot topic for employers.
Bullying is covered in a host of statutes including the Employment Relations Act 2000, Health and Safety at Work Act 2015, Harassment Act 1997 and the Human Rights Act 1993. Employers can come unstuck if they fail to handle bullying appropriately. To complicate matters employers owe duties to the alleged victim and the alleged bully, and are often the proverbial ‘meat in the sandwich’.
Failure by employers to take all practicable steps to prevent and deal appropriately with bullying may lead to a personal grievance in the Employment Relations Authority (ERA), a Worksafe investigation/penalties, or a personal injury claim (pure mental harm is not covered by ACC and is not statute barred). These cases can be costly. Recently in Australia, an employee was awarded $1.36m after being subjected to daily bullying, harassment and sexual abuse in the workplace. This left her with chronic and significant psychiatric injuries and it is highly unlikely that she would ever work again. [1]
Employers should also be aware that workplace disputes can escalate into cyber bullying that occurs outside the workplace, and that this is the employers concern. In the case of Adams [2] a minor workplace dispute between colleagues over break times and the use of a job code escalated outside work hours when Ms Adams sent her colleague abusive messages on Facebook. The colleague made a formal complaint to the employer and Ms Adams was dismissed. Although the ERA found that the decision to dismiss Ms Adams was based on satisfactory grounds, the procedure it followed was flawed. It is clear that employers need to take responsibility for the health and safety of their employees (and others) that may be impacted by cyber bullying.
Bullying by senior management is a very common form of bullying. It is paramount that those involved in the day to day management of staff are aware of how their actions affect team members, including awareness that some staff may be more sensitive than others. Managers need to take any complaints of bullying seriously and follow the correct procedures when addressing them. Failure to do this resulted in an employee successfully claiming unjustified constructive dismissal in the ERA in Christchurch.[3]
All workplace bullying is a threat to health and safety and its effect on employees is subjective. It is clear from recent cases that bullying should be taken seriously, even if they appear minor. This requires sound preventative measures together with good process when an issue arises. We are increasingly more sensitive and aware of workplace bullying. Employers should remember that in addition to traditional avenues like personal grievances, employers may also face a Worksafe prosecution and the resulting penalties regime.
This article is intended to provide a general guide on this topic. Legal advice should be sought about your specific circumstances.
[1] Mathews v Winslow Constructors (Vic) Pty Limited [2015] VSC 728
[2] Adams v Wellington Free Ambulance Service Incorporated unreported, G Wood, 23 Jul 2010, WA 8A/10
[3] Beckingsale v Canterbury District Health Board [2015] NZERA 163
Read more about Norris Ward McKinnon here.