Following the recent decision in Williams v AWF Limited [2020] NZERA 401, Kathryn McKinney, Partner at Anthony Harper, shares an overview of bullying in the workplace in New Zealand and highlights the employer’s responsibilities when such incidents arise. She outlines the significance of what the Authority held in this case, emphasising the importance of employers to ensure employees need to feel safe in their workplace.
An employee has recently been awarded $20,000 plus three months’ wages as a result of the employer failing to properly address complaints of bullying.
We are often asked what happens after an investigation finds that harassment has occurred, but the behaviour in question does not give rise to grounds for dismissal. An employer may not wish to disclose the details of the disciplinary outcome to the victim of the bullying, but this may leave them feeling vulnerable and uncertain about their ongoing health and wellbeing at work.
It is really important to find ways to address these problems and continue to be open and communicative with all impacted employees.
What is bullying in the workplace?
There is no statutory definition of bullying in New Zealand, however, WorkSafe New Zealand defines bullying as repeated and unreasonable behaviour directed towards an employee or a group of employees. Bullying can be physical or psychological, and direct or indirect.
Bullying is not limited to managers targeting staff, it can also include customers, clients, and co-workers. Harassment and discrimination can also be part of bullying.
What are an employer’s responsibilities regarding incidents of bullying in the workplace?
Bullying in the workplace can reduce a worker’s ability to work safely and productively, and it can have a significant impact on a worker’s mental health.
An employer has a legal obligation to provide a safe working environment for all its employees. Therefore, an employer has an obligation to protect its employees from instances of bullying and harassment in the workplace, and if such instances occur, then the employer has an obligation to fully investigate the matters and take appropriate action to address the bullying behaviour.
A recent determination by the Employment Relations Authority (the Authority) takes a look at whether an employer’s response to bullying the workplace was appropriate and sufficient.
What happened in the case Williams v AWF Limited [2020] NZERA 401?
The employee (Ms Williams) complained about bullying in the workplace directed towards her by her manager. She complained about this behaviour multiple times to two different individuals in management. Eventually, as a result of Ms Williams’s complaints, an investigation was carried out into her manager’s behaviour and Ms Williams was asked to work from home whilst the investigation was being carried out. The investigation found that Ms Williams had been bullied by her manager.
However, the investigation report also found that Ms Williams had not been disadvantaged by the way the company had responded to her complaints.
As a result of the outcome of the investigation, the company sought to resolve the issues and suggested a return to work plan for Ms Williams. The company asked Ms Williams to return to work, reporting to the same manager. The company confirmed that the manager had been appropriately disciplined, and so therefore felt that the concerns had been addressed and that both parties needed to “draw a line in the sand”.
Ms Williams received a return to work plan which included a number of meetings with her manager over the first week. Ms Williams said this plan only addressed the company’s interests but did not take into account her own concerns. Her advocate suggested mediation and the company declined.
In the absence of an agreement, the company placed Ms Williams on leave without pay and asked her to return all company property.
Ms Williams then raised a personal grievance for an unjustified dismissal and unjustified disadvantage.
What did the Authority hold?
The Authority held that:
- Simply investigating the matter did not mean that the company had taken appropriate steps to address the issues.
- A fair and reasonable employer could not conclude that the return to work plan was acceptable. The investigation found that the relationship between Ms Williams and her manager was irreparable and yet the employer’s response was that they should draw a line in the sand and continue to work together.
- Suggesting one to one meetings or a group meeting between the parties was not reasonable either.
- There was therefore little assurance for Ms Williams that she would not be submitted to further bullying.
- Failing to act reasonably was a significant breach of obligations that the company owed to Ms Williams and her resignation was a reasonably foreseeable result of the company’s actions. Therefore the company unjustifiable dismissed Ms Williams.
The Authority found that Ms Williams had been constructively dismissed. Ms Williams was awarded $20,000 in compensation and three months’ lost wages.
This is a significant award and demonstrates that the Authority will take a dim view of employers who fail to address bullying and harassment issues when they are raised and also fail to find a reasonable outcome for the affected party after the outcome is reached. Employers need to ensure that their employees feel safe in the workplace before, during and after the investigation has taken place.
Kathryn McKinney is involved in both contentious and non-contentious employment work. She provides advice on the full spectrum of employment law, from employment relations, industrial relations and corporate support, through to Holidays Act compliance and conducting employment investigations. Kathryn has 20 years’ employment law experience, gained at top-tier firms in New Zealand and the United Kingdom, as well as experience advising in a consulting capacity and in-house. She is qualified to practise law in England & Wales, Northern Ireland and New Zealand. You may connect with Kathyrn via email kathryn.mckinney@ah.co.nz or LinkedIn 
