Updated: Feb 1, 2021
Bullying: It's a problem in New Zealand workplaces and it isn't being taken seriously enough.
Most bullying cases fail at the Employment Relations Authority because of the difficult evidential barrier: how do you prove "on the balance of probabilities" that bullying occurred, when there were no witnesses, no written correspondence, and no hard proof?
It's hard, and often times you can't.
This is a problem. Time and time again, employees do not get the justice they deserve. They may be successful in their personal grievance on other grounds, but rarely will the Employment Relations Authority determine that they have been bullied.
Sometimes that's all a person needs.
The good news is that it's possible; however, it will take some significant (but simple) changes at a legislative level. It's my view that bullying claims should be handled as a separate personal grievance, as sexual and racial harassment claims are.
Let me explain.
Section 103(1)(e): Personal Grievance for Sexual Harassment
Section 103(1)(e) of the Employment Relations Act 2000 provides that an employee will have a personal grievance where the employee has sexually harassed in their employment.
Section 108 limits this personal grievance to situations where the employee has been sexually harassed by either their employer directly, or by a representative of their employer.
However, there are situations where an employee may be found to have a personal grievance for sexual harassment when the harassment has come from an employee who is not a representative of the employer.
Section 117 states that an employee may make a complaint about another employee's behaviour, if that behaviour is of the nature contained within section 108(1)(a) or (b): that is, whether the employee used language of a sexual nature, used visual material of a sexual nature, or displayed a physical behaviour of a sexual nature.
Section 117 continues that where an employer receives such a complaint, they must enquire into the facts. With respect to that investigation, section 116 states that: "Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation."
There is an expectation that the employer will make a finding as to whether, or not, sexual harassment occurred. This obligation is implied in section 117(4), where upon concluding that sexual harassment did occur, the employer must "take whatever steps are practicable to prevent any repetition of such a request or of such behaviour."
I wish to highlight here that this obligation to prevent repetition is broad. It is broader than simply disciplining the accused. I believe it involves taking "whatever steps are practicable" to prevent any repetition of the behaviour ... from anyone in the workplace.
If the employer fails to do this, then by virtue of section 118, the employee is deemed to have a personal grievance in accordance with section 103(1)(d); irrespective of the fact that the employee was not sexually harassed by their employer or a representative of their employer.
They are found to have a personal grievance for sexual harassment.
The Theoretical Bullying Personal Grievance
This framework would directly apply to bullying situations, and would have some significant benefits in addressing and preventing bullying behaviour:
Bullying would be seen as being just as serious as sexual and racial harassment.
Employees would be empowered to raise a personal grievance for bullying, where that bullying occurs directly by the employer. There would be no suggestion that the employer be required to investigate its own conduct; it would be a personal grievance in its own right.
There would be an obligation for an employer to investigate all bullying complaints, and the failure to conduct an investigation would amount to a personal grievance as if the employee were bullied directly by the employer.
There would be an obligation for an employer to make a finding about whether bullying did, or did not, occur.
There would be an obligation for an employer to take all reasonably practicable steps to prevent repetition of such behaviour. This would assist in changing workplace cultures towards bullying and other unfair behaviours.
Similar to section 116, there could be a legislative requirement that no account be taken of an employee's mental health in assessing the seriousness of the complaints. This is to prevent "gaslighting", whereby an employer or an employer's representative may claim that the employee's recollection of events has been tarred by their mental health condition.
Importantly, a successful personal grievance for bullying under this proposal would amount to a determination that the employee had been bullied. This is distinct from a determination that the employer did not conduct a fair and reasonable investigation process.
The employee would walk away with justice and validation: they were a victim of bullying.
Bullying is a serious concern; in our workplaces, in our schools, and in our social groups. The truth is, our laws, systems and institutions are failing our people.
It's time that we take this issue seriously.
The law can be changed. Our systems and institutions can be changed. There is nothing stopping us from addressing this problem now. My solution is a fairly simple one; and could be applied in conjunction with a formal definition of "bullying."
It would bring justice to our people.
Do you agree?