This is Phillip’s three-part series on workplace bullying which featured in the Star in May, June and July – if you forgot to cut them out of the paper, here they all are for easy reference.

Friday July 11th, 2014

1. Workplace bullying- whose risk?

Workplace bullying is a term you have probably heard of, but you may be unclear about.

A good place to start is with the Worksafe New Zealand guide “Bullying – preventing and responding to workplace bullying’’. It is free from the Worksafe NZ website.

It provides questionnaires for employees and employers to identify whether or not there is bullying and information about what to do.

The guide makes it clear employers must develop a process for managing workplace bullying and to involve staff in this.

The Health and Safety in Employment Act 1992 requires employers to ensure their employees are not exposed to various hazards, including physical and psychological harm.

This includes protecting staff from another person’s behaviour in the workplace that might cause harm. Employers need to check for and know about such hazards and their potential for harm.

The guide makes it plain employers should have a policy for identifying and dealing with workplace bullying.

It also outlines the consequences for employers of not dealing with complaints of workplace bullying.
Employers who fail to act are open to a range of actions under the Employment Relations Act 2000. These include penalty for breach (fine), personal grievance for unjustifiable action causing disadvantage and personal grievance for unjustified dismissal including where resignation has resulted from an employer’s failure to act.

So whose job is it to act? An employee needs to follow their employer’s complaint procedure without fear of repercussion. This should be done in writing. All meetings held with management regarding the complaint should always be attended by a support person for the complainant.

Employers must keep an open mind and resist the urge to write off the complaint of workplace bullying as a personality problem. This the wrong approach because:
i) There is a real risk for employers who fail to act and investigate complaints in the workplace when there is conflict. This will cost them dearly when they are sued later.
iii) It always aggravates the harm to victimised employees to be blamed for a personality problem. This will increase the cost to the employer when sued later.
ii) All behaviour ought to be judged in as to whether it is acceptable or unacceptable and not according to who is involved.

2. There is a right way and a wrong way to investigate bullying complaints at work.

If you need to know more about what constitutes bullying, a good place to start is with the Worksafe New Zealand guide “Bullying – preventing and responding to Workplace bullying” which I referred to last month.

Workplace bullying involves the actions of individuals that target another individual. This means a person being victimised is immediately caught in a ‘’he said’’, ‘’she said’’ type of argument.

For an employer, the investigation process must be conducted with an open mind and it must also be fair and reasonable for both the alleged victim and the alleged perpetrator(s). This is because the complaint of bullying must be put to the alleged perpetrator for their explanation.

It may be that a disciplinary process might follow, so the employer needs to be careful how he or she proceeds as there is the risk of not just one, but two unhappy employees taking personal grievances if the investigation process is flawed.

The investigation process may not always require the assistance of outsider, but in some cases it may.

In all cases of alleged workplace bullying there is a need for employers to seek expert employment relations advice and ensure that, if necessary, they are able to engage a competent person to conduct a workplace investigation.

The knowledge and experience of employment relations practice and procedure is an essential requirement for a workplace investigator, because the process is quite different from, and much more complicated, than other investigation processes. Assumptions of innocence and guilt are inappropriate.

There may be different perceptions of what constitutes unacceptable behaviour. (This was also found to be the case in the 1980s when employment legislation first included sexual harassment as grounds for personal grievance.)

The workplace investigation process is highly specialised. Quite a few workplace investigations are bungled or biased. There can be a conflict of interest for managers involved in the investigation who are subjects of the complaint.

Sometimes the investigator appears to conduct the investigation to elicit pre-determined answers. In these cases there has been no commitment to or demonstration of being impartial or objective. Often these shortcomings arise as a result of a hasty or poorly thought through investigator selection process. As a result the wrong person is selected to conduct the investigation.

3. Unacceptable behaviour towards others at work – bullying and disharmony

Employers often do not know how to deal with bullies working for them and that is the area I will explore in this third column on workplace bullying.

Employers should investigate and apply their code of conduct to their findings regarding complaints of bullying behaviour. This then allows the employer to test whether there has been a breach of their code such as serious misconduct.

The employer can then decide whether to follow a disciplinary process. Before doing so, the employer should consider the views of the employee who is the subject of the complaint and if there is a case for other options. One alternative is to place the employee on a work performance plan which, with appropriate training and counselling, can be monitored to achieve change. This can only work if the employee concerned has a genuine willingness to cooperate and take responsibility for their actions.

Employee attitude is always an important factor for employers to consider in all workplace complaints, not just those involving workplace bullying. This is because the Employment Court allows that the employer should be able to take into account whether an employee shows insight and contrition when the employer is considering the actions or behaviour of an employee who is the subject of a complaint. So, whether that employee takes early and genuine responsibility for their actions is always very important to the final outcome.

Sometimes the behaviour of someone towards others at work may not be considered bullying but it may have caused offence, creating disharmony in the workplace. Ignoring repeated complaints about this sort of behavior could affect the willingness of staff to raise concerns and harm trust and confidence in their employer.

Employers should always follow up a disharmony complaint. An investigation may show others are affected. If the behaviour of the person creating the disharmony cannot be changed through counselling and a work performance plan, then the employer may propose they transfer to another work area. In some cases the Employment Court has upheld the view that there may be no other option available to the employer than to terminate their employment.

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