WHY EMPLOYERS SHOULD CARE – BULLYING, HEALTH & SAFETY, EMPLOYMENT
General / 25 March 2016
Lucia Vincent, Senior Solicitor*
NZISM Otago Branch Seminar – 2 July 2015
Bullying hurts. Most know the sting of a hurtful jibe or playful punch. Being teased as a child forced me to grow a thick skin. I don’t wince if someone calls me freckle face anymore. But it becomes more sinister when adults are involved; especially at work where many of us spend most of our waking day. Why should employers care? And what does it have to do with health and safety?
Why should Employers Care?
Because it pays to. Bullies harm people, productivity and ultimately the bottom line. Like any unidentified hazard, bullies cause casualties before you even know they exist. An employer can no longer pretend that hurt feelings won’t cost them financially. Increased levels of sick leave, unhappy and unproductive teams, problems with retention and recruitment all cost money as well as morale and could indicate your workplace is suffering from bullying.
Both bullies and complainants can get litigious too. For example, an employee may raise a personal grievance (PG) for unjustified dismissal even if they have resigned because of a bully – an employee forced to resign because their employer failed to take their concerns seriously can claim they have been constructively dismissed. The Labour Court called this the “…wolf of dismissal in the sheep’s clothing of resignation.”
A forced resignation could result from an employer behaving in a way that seriously damaged their employee’s trust and confidence in them. An employer may undermine an employee’s trust by failing to take all practicable steps to ensure their safety at work. Think of a situation where an employer fails to follow up a complaint of bullying behaviour causing the employee to become depressed due to work-related stress. Bullying in this sense is hazardous to your employees’ health and has to be dealt with under the Health and Safety in Employment Act 1992.
Bullying or just plain rude?
Forgetting to wish your workmate “Happy Birthday” or providing constructive criticism about an employee’s performance are unlikely to meet the threshold in the absence of something more calculated or unfair. The Employment Relations Authority has accepted that bullying is behaviour that is:
… repeated and carried out with a desire to gain power or exert dominance and an intention to cause fear and distress. This behaviour usually includes elements of personal denigration and disdain of the person subject to it. It is intended to control the behaviour or actions of its target in particular ways.
Although no statutory definition exists in New Zealand, WorkSafe has defined bullying in Guidelines as follows:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
Repeated behaviour is persistent and can involve a range of actions over time.
Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.
A single incident of unreasonable behaviour is not considered workplace bullying, but it could escalate and should not be ignored.
Bullying behaviours are described as commonly presenting in two main categories – attacks that are personal and direct (such as insulting, teasing, jokes, verbal abuse and using obscene or offensive language), or task-related and indirect (such as setting impossible deadlines, constant criticism of work, making hints or threats about job security and scapegoating).
Bullying is not setting high performance standards, occasional rudeness, constructive feedback, a manager requiring reasonable instructions to be carried out or single incidents of unreasonable behaviour. Isolated incidents of rudeness are unlikely to support a constructive dismissal claim either. The Labour Court commented that:
… the law does not compel parties to a contract to do more than perform it and it does not require them to perform it politely, nor is this Court empowered to enforce courtesy in the workplace, no matter how desirable in that environment that quality undoubtedly is.
The Employment Relations Authority has accepted that “Workplace bullying is difficult to define” and has referred to the Guidelines to help undertake this task. We would be well advised to follow suit.
Not my problem?
Clearly an employer is responsible if they bully an employee directly. But an employer is also responsible for the actions of an employee who has authority over another (such as a manager). An employer must also ensure that members of the public and independent contractors do not create a hazardous working environment for their staff.
Managers with a domineering, blunt and abrupt management style shouldn’t assume staff can bat it back to avoid their obligations either. It is not acceptable for a manager to expect an employee to “sling it back” even if other staff do, to keep an aggressive exchange even. This is especially so if a manager goes beyond generally accepted management norms. Similarly, an employer may not be justified in readily accepting a resignation where an employee faces difficulty dealing with a well known hazard that the employer has failed to provide training on – like the aggressive dogs that Power Meter Readers might face.
The risk of bullying from the public can also pose a risk worth remedying. For example, Council employees have been held to have reasonably objected to wearing name badges that displayed their surnames due to their concern that displaying their surnames could enable disgruntled members of the public to track them down to their home address and confront them. In the case referred to, the Employment Court accepted that:
It was not being unduly alarmist to accept that there is a reasonable possibility that they could be subjected to violence or harassment at home as a result of being identified at work by a hostile member of the public.
Removing surnames from badges amounted to an “entirely practicable” step for the employer to take; the requirement to wear badges with surnames, unreasonable.
Handling Health and Safety
Currently employers must comply with a raft of health and safety related legislation including the Health and Safety in Employment Act 1992, Accident Compensation Act 2001 and rules relating to hazardous substances and smokefree workplaces. To top this off we have the Health and Safety Reform Bill to deal with.
Every employer must take all practicable steps to ensure the safety of employees while at work. This requires an employer to take a step if it is “reasonably practicable” to take in the circumstances having regard to several factors including the nature and severity of any injury that may occur, degree of risk or probability of injury or harm occurring, how much is known about the hazard and ways of controlling the hazard and the availability and cost of safeguards.
The definition of hazard includes actual and potential sources of harm and situations where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person, whether that behaviour results from physical or mental fatigue, drugs, alcohol or another temporary condition. The definition of harm includes physical or mental harm caused by work-related stress. Bullies can cause their targets to feel anxious or depressed, feelings that as we know can result in time off work and long term health consequences. Sound familiar?
The Court of Appeal has firmly rejected any argument that work related stress is never an employer’s problem – it will depend on the specific circumstances of each case:
The standard of protection provided to employees by the Health and Safety in Employment Act is however a protection against unacceptable employment practices which have to be assessed in context. That is made clear by the definition of “all practicable steps”. What is “reasonably practicable” requires a balance. Severity of harm, the current state of knowledge about its likelihood, knowledge of the means to counter the risk, and the cost and availability of those means, all have to be assessed. Moreover, under s19 the employee must himself take all practicable steps to ensure his own safety while at work. These are formidable obstacles which a potential plaintiff must overcome in establishing breach of the contractual obligation. Foreseeability of harm and its risk will be important in considering whether an employer has failed to take all practicable steps to overcome it. These assessments must take account of the current state of knowledge and not be made with the benefit of hindsight. An employer does not guarantee to cocoon employees from stress and upset, nor is the employer a guarantor of the safety or health of the employee. Whether workplace stress is unreasonable is a matter of judgment on the facts. It may turn upon the nature of the job being performed as well as the workplace conditions. The employer’s obligation will vary according to the particular circumstances. The contractual obligation requires reasonable steps which are proportionate to known and avoidable risks.
Don’t assume immunity from prosecution just because you’ve settled your PG. Admittedly, work-related stress claims are not as popular in health and safety prosecutions. But employers can and have been prosecuted for breaching its obligations to staff in respect of work-related stress. One case demonstrated that prosecution can follow the parties settling the employment relationship problem. Any compensation confidentially paid has been taken into account when setting the amount of any reparation in sentencing.
Employers ought to take note that the Judge in the case referred to above, emphasised that in relation to sentencing for this work-related stress claim “there needs to be a deterrent effect in sentencing to discourage any employer from avoiding responsibility for the health of their employees.” Further that:
Employers have to be vigilant that the stress placed on an employee is reasonable. There will always be stresses in a job, but they must not become health-threatening. Where employees have stressful work conditions and special medical difficulties advised to the employer, then immediate remedial action is required.
Employees and the self employed in small operations won’t escape prosecution even if no harm is actually caused. The High Court has recently demonstrated a willingness to impose penalties that “bite” where the risk being taken has been repeatedly identified by WorkSafe and warnings apparently disregarded.
Liabilities for those involved in workplaces will continue and arguably increase if the Health and Safety Reform Bill is passed in its current form. For example, the primary duty holder under the Bill would require any person conducting a business or undertaking (defined in proposed section 13) to “so far as is reasonably practicable,” to ensure the health and safety of workers – cost is a final consideration.
Under any regime, it will always be essential to have a health and safety policy, to ensure that staff are trained in that policy and understand all the hazards in their workplace and how to work safely. Bullying must continue to be dealt with.
Dealing with it
Increase awareness of the problem posed by bullies in the workplace. Employers should start by checking that a robust and realistic policy on bullying is in place, changes consulted on, its contents regularly reviewed and that managers apply it consistently. Clearly identify bullying as a hazard and aim to establish a culture that treats complaints seriously and encourages employees to report concerning behaviour – whether as a witness, victim or a bully. Employers shouldn’t wait until a serious problem arises before putting in place systems to deal with it.
Upon receiving a complaint an employer must investigate. Depending on the seriousness and nature of the allegations, investigations can be carried out internally or externally. Appoint someone impartial who possesses the right skills and expertise to appropriately manage the issues.
At the outset, explain the rights and responsibilities to all parties such as:
Who and how the complaint will be investigated (be clear about any limits on confidentiality and that you will treat all parties with sensitivity, respect and courtesy)
What information will be received and by whom e.g. statements and records of discussions
Who can be present at interviews (always suggest bringing a support person and/or representative), and whether someone can refuse to participate
What support is available (counselling or other support options are essential)
What if any interim measures will be implemented to ensure the safety and welfare of the parties involved especially the complainant (this may include redeployment or reassignment to another area of the organisation ideally by agreement, mutually agreed paid leave and if the circumstances justify it, possible suspension of the alleged bully)
An Investigator is essentially on a fact finding mission and should begin with interviewing and understanding clearly what has been alleged from the complainant. Further investigations would normally including interviewing anyone else all involved especially witnesses to any events and documentary evidence where available. This process will often result in a written report as to what occurred and whether the behaviour is bullying, with recommendations for what steps should follow.
Whoever investigates, it is the employer who must ultimately decide on a course of action following the report, including where the allegation is substantiated, whether or not to initiate a disciplinary process and what if any action will be taken. Even if bullying isn’t substantiated, a prudent employer will scrutinise the adequacy of their policy, workplace culture, training (often on communication for a manager subject of a complaint), support (such as counselling) and facilitating a meeting between parties to resolve any conflict (this could include mediation).
Disciplining for Health & Safety Breaches
An employer may initiate a disciplinary process when an employee commits an act of misconduct or serious misconduct. Several reasons exist for starting such a process. These range from serious allegations that potentially warrant summary dismissal (such as stealing or proven instances of bullying that are often able to be classed as health and safety breaches) to more minor offences that perhaps require only warnings (such as being a bit late). As always there are two aspects to consider: Substantive and Procedural fairness.
Substantive fairness is essentially asking whether your employee has behaved badly enough to warrant the disciplinary action you want to take. For example, being consistently late might be warrant a warning whereas stealing or ongoing bullying attracts more serious sanctions. In assessing whether an employee’s conduct could be classed as misconduct of a serious or less serious nature, the employer must have reasonable grounds based on clear evidence and/or findings from a reasonable investigation for their decision.
The Fundamentals for any disciplinary process and decision are the duty of good faith and test of justification. Employers and employees must deal with each other in good faith. In addition, an employer must be fair and reasonable in its decision making. These concepts are vital to an employer’s understanding of its obligations and rights and highlight that when dealing with each other parties must exhibit good faith behaviour.
Good faith requires that you don’t do anything directly or indirectly that will or is likely to, mislead or deceive either an employee or a union. Both employee and employer must be active and constructive in establishing and maintaining a productive employment relationship in which they are at least responsive and communicative.
Additionally, an employer must provide an employee with access to information and an opportunity to comment on that information, where a proposed decision will, or is likely to, negatively impact the ongoing employment of that employee. That opportunity to comment must be given before any decision is made.
Keep It Real
Employers are frequently told what they should and shouldn’t be doing – don’t despair! Bullying is not a new issue but we are much more aware and well resourced than we have ever been as a country to deal with it. Start with reading the Guidelines and choose one thing you can change in your workplace to improve your culture today to be less tolerant of bullying behaviour.
*The Author would like to thank Jessica Frame for her assistance in preparing this paper.
Disclaimer: Copeland Ashcroft Law and Lucia Vincent produced this Paper and supporting materials to provide a brief summary of employment law issues and developments affecting employers and their businesses. Although we have taken care to ensure accuracy, details may be omitted that may be directly relevant to you. This Paper, supporting materials and the information contained within them do not purport to be and should not be used as specific legal or professional advice and we accept no responsibility for any errors or omissions or for any loss or damage resulting from reliance on or use of same. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.
© Copyright Copeland Ashcroft Law 2015
 At 803, New Zealand Woollen Workers IUOW v Distinctive Knitwear New Zealand Ltd (1990) ERNZ Sel Cas 791
 At 49, Menelda v Publicis Mojo Ltd  NZERA Auckland AA403/07
 Best Practice Guidelines, “Preventing and Responding to Workplace Bullying” (February 2014), at page 6, Author’s emphasis
 Ibid at pages 6-7
 Ibid at page 11
 See for example, Dent v Waikato District Health Board  NZERA Auckland 526, at 77 and Hartley v Carter Hold Harvey Limited  NZERA Christchurch 196, at 73 – 74
 Section 103(2) Employment Relations Act 2000
 See Edmonds v Attorney General  1 ERNZ 1
 Ibid, at 33
Ibid, at 40
 Section 6, Health and Safety in Employment Act 1992
 Section 2A, Ibid
 Attorney-General v Gilbert, 14/3/2002, CA , at 83, Author’s Emphasis
 See for example, Department of Labour v Nalder & Biddle (Nelson) Limited, 13/4/05, DC Nelson
 Ibid, at 8
 Ibid, at 11, Author’s Emphasis
 See for example, Jones & Ors v Worksafe New Zealand  NZHC 781 where penalties totalling $30,000 and $12,000 were imposed on the Appellants for failing to wear a quad bike helmet as well as having young children as passengers.