Incidences of bullying and harassment at work are far from uncommon and while the statistics vary somewhat, it seems employees are increasingly cognisant of their rights and the legal ramifications around bullying. By Annie Gray.
Massey University’s extensive NZ Workplace Barometer 2021 Findings Report which surveyed employees of 23 organisations noted that 17 percent of respondents reported they had experienced bullying themselves while 36.8 percent observed bullying towards others. Both results were reasonably similar to the percentages reported in 2020 and 2019 Workplace Barometers.
Meanwhile an MBIE issues paper Bullying and Harassment at Work from 2020 says that bullying and harassment are serious and common work risks, with some sources suggesting as many as one in five workers are affected by such behaviours each year (WorkSafe, 2019b).
It noted that such behaviours can cause severe social, psychological and psychosomatic problems in the target.
The same report said a StatsNZ’s 2018 Survey of Working Life found that 11.4 percent of people surveyed reported bullying, harassment or discrimination in the last 12 months. That was an increase from the 10 percent who reported bullying, harassment or discrimination in the December 2012 survey, and the 9.8 percent in the March 2008 survey.
So, does this indicate that bullying and harassment are on the rise? Or is it a result of employees being more aware of their rights within the workplace, and employers being more cognisant that bullying falls under the Health and Safety at Work Act and hence they have legal obligations around any complaints that are made?
Kerry Tattersall, an Associate, Senior ER/HR Consultant and Licensed Private Investigator at Baker Tilly Staples Rodway, told Management she has undertaken more employment investigations in the past month (November) than she had in the past six months, almost exclusively around claims of bullying.
While her figures are anecdotal, she concludes that both employees and employers are becoming less likely to tolerate poor behaviour.
As to whether this is a result of Covid lockdowns, is anyone’s guess; but Tattersall also points to the current skills shortage, which means people who are not prepared to put up with bad behaviour at work, are likely to be able to easily find work elsewhere.
As a workplace investigator Tattersall describes her role, once a company has approached her to look into a complaint, as drilling as deeply as possible into the issues, talking with all parties involved, in a safe environment for them.
She then presents her findings, but doesn’t make a recommendation as this, she says, would blur the lines of impartiality.
There is no legal definition of bullying in New Zealand but Work Safe NZ and MBIE work with the Safe Work Australia definition of: “Workplace bullying is repeated, unreasonable behaviour directed at a worker (or group of workers) that can lead to physical or psychological harm.”
Tattersall emphasises that bullying and harassment sit under the Health and Safety at Work Act and are considered workplace hazards.
She also thinks the importance of holding PI certification has come to the fore since a 2020 case into whether a firm investigating a workplace incident had breached the Private Security and Personal Private Investigators Act 2010 by conducting an investigation without a license.
Lawyers can also undertake an investigation.
She believes some employers are not aware of their legal obligations should someone lay a formal complaint or grievance and that conducting an investigation without due process can become a major risk, if something happens to stop the firm from ensuring an investigation is done in a procedurally correct and fair manner.
Tattersall points to a case when a former charitable organisation employee, who had complained of bullying, was awarded almost $68,000 by the Employment Relations Authority after being wrongly fired.
Media reports at the time said the worker was sacked by the organisation after raising complaints of bullying and subsequently taking time off for health reasons. But the Employment Relations Authority ruled the organisation was unjustified in the sacking, and failed to provide the worker with adequate support or properly investigate the claims.
Tattersall also notes that it can be up to a year before cases are heard by the ERA and she is noticing a rising trend in the compensation that is awarded.
But more importantly, she says, is the impact of a delayed hearing on the workplace and its culture – particularly on the rest of the workforce and on the company if it is seen as having a toxic culture that supports bad behaviour.
This, she says, has a knock-on effect on both the company’s reputation and in its ability to attract and retain employees.
In her experience she believes employees are more aware of their rights today; and are much better informed about the legislation. But she is also seeing more bad behaviour on both sides of employment equation, describing it as the way in which people are conducting themselves and how they are in dealing with each other on a day-to-day basis.
Virtually all of the investigations she does are around bullying and harassment, but it is not always adversarial, there are occasions where a restorative approach may be the right way in dealing with it – which may also be supported by mentoring or training.
Tattersall reiterates that employers have a duty to investigate any formal complaint – regardless of whether they believe it is founded or not.
So what should an employer do?
• Seek somebody external with the appropriate qualifications to undertake any investigation.
• Undertake a census of the business or a 360-degree review.
• Look at putting a staff engagement survey in place.
• Leaders need to listen to what is going on.
• If you have a high turnover of staff – consider exit interviews to identify where the problems lie.
She says it comes down to what a leader knows about their workforce. “Culture is many little things done right.”
