Lane Neave Partner Fiona McMillan and Law Clerk Imogen Little discuss how Workplace Bullying and Harassment is becoming an increasing concern to WorkSafe New Zealand and in particular, the issue of an employer’s duty to prevent such conduct from occurring.
Fiona will present on the topic: Employment Law Update: What Schools Need to Know, at the Education Law Conference on Tuesday, 12 March.
Bullying and harassment may not be the first issue employers’ tend to think about when assessing workplace health and safety risks. However, according to a recent article published by WorkSafe, it is a fast-emerging issue in the realm of health and safety, and one that WorkSafe takes seriously.
This means that in schools, bullying is not only an issue to watch out for in the playground. Teachers can potentially be at risk of bullying and harassment from their colleagues or members of the management team, and such behaviour will be of concern to WorkSafe. Bullying has the potential to lead to physical or psychological harm, and WorkSafe states that the health risks resulting from bullying have a moderate to high likelihood of occurring. Bullying among school staff can also impact the wellbeing of those observing it, and can negatively affect an entire school environment.
What constitutes bullying and harassment?
WorkSafe defines bullying in this context to mean “repeated and unreasonable behavior directed towards a worker or group of workers that can lead to physical or psychological harm”. This could include persistent victimising, humiliating, intimidating or threatening of a person. It would not include one-off instances of rudeness or tactlessness, setting high performance standards, giving constructive feedback and legitimate advice, giving a warning or discipline as per a code of conduct, or a single instance of unreasonable behaviour.
How common is workplace bullying and harassment?
Between 16 December 2013 and 25 October 2018, WorkSafe recorded 178 cases alleging bullying. Sixteen of these were investigated by WorkSafe, and 66 were either referred to a more appropriate agency, or referred back to the workplace to self-manage. However, WorkSafe asserts that the frequency of workplace bullying is actually much higher than this: it suggests that between one in five and one in three New Zealand workers experience workplace bullying and harassment each year.
What duties do schools have in relation to bullying and harassment of its employees?
Because bullying and harassment is such a known and common workplace occurrence, managing its risk should be a standard part of every effective health and safety system, including those in primary and secondary schools. Under the Health and Safety at Work Act 2015 (Act), every employee in a school has roles and responsibilities regarding health and safety. In relation to bullying, some of these are:
- The board of trustees, as the PCBU (Person Conducting a Business or Undertaking), must minimise the likelihood of bullying occurring, so far as is reasonably practicable. It must provide information and training around bullying and harassment policies and processes. Also, it should create, reinforce, monitor and review control measures against bullying, develop a culture where bullying cannot thrive, establish open communication systems, and have a comprehensive complaints-handling process.
- Department managers should raise awareness around what is and isn’t bullying, record and investigate complaints fairly, and look for informal solutions before escalating an issue to higher levels as appropriate. They should support positive culture-change programmes, lead by example, and seek help if they are not sure what action to take.
- Teachers must take reasonable care for their own health and safety, and for that of others by not harming others through what they do or don’t do. They must cooperate with reasonable policies and procedures concerning bullying. Additionally, they should report bullying when it happens, whether they are the victim or a bystander, and should let another teacher know if that person’s behaviour is not okay with them.
Failing to comply with duties
WorkSafe is the regulator that ensures compliance with health and safety regulations under section 189 of the Act. WorkSafe’s role in relation to bullying includes supporting harm prevention activity, as well as investigating the most serious claims – those that involve a diagnosis of serious mental harm.
In a case of workplace bullying within a school, WorkSafe would have the option to prosecute, although no prosecutions have been made on any bullying matter to date. For WorkSafe to bring a prosecution, the relevant offence under the Act must be proven beyond reasonable doubt, and there must be a public interest in the prosecution occurring. Individuals may also bring private prosecutions for health and safety breaches, including suffering workplace bullying and harassment, if given leave to do so by the court.
For the most serious offences and breaches of duty, a board of trustees could be liable as an entity for fines of up to $500,000, $1.5 million, or $3 million, depending on the offence. However, note that individual trustees of school boards, excluding the principal, are immune from personal prosecution as officers, despite holding officer duties under the Act.
Reducing the psychological risks associated with bullying and harassment is a focus of WorkSafe’s 10-year strategic plan for improving work-related mental health. Therefore, this area is certainly one to watch in the realm of health and safety law.
Fiona McMillan specialises in assisting employers with all employment law related advice involving all processes from restructurings to disciplinary matters. She has built strong relationships within a number of different industries including corporate, tourism and manufacturing. Fiona has a hands on style of practise which involves working in a business as opposed to working alongside it. This is where Fiona’s Human Resources experience comes in. Fiona often undertakes HR audits and internal investigations, and assists with the day to day HR functions of a business. Although Fiona is based in Auckland she works with clients in all parts of the country. Fiona regularly presents employment law seminars around New Zealand. Contact Fiona at [email protected]
Imogen Little is a Law Clerk in the Lane Neave Auckland Office. She assists the Employment team with a wide range of matters, including research and drafting documents. Connect with Imogen via LinkedIn