Deal with it sooner rather than later

Concerns about workplace bullying and stress need to be dealt with promptly before they escalate, an employment lawyer has warned.

Samantha Turner, a partner at Simpson Grierson, told LegalSafe conference delegates (Nov. 2011) that employers did not always take sufficient action over such claims from staff, which could lead to more problems and expense down the track.

Health & Safety + HR = workplace wellness

She said it was an example of an area where health and safety crossed over with HR and she was surprised the related personnel did not always work closely together to ensure staff members were well and safe.

Signs of stress

Stress was a particularly common problem, with signs including low morale, high absenteeism, loss of productivity and slow reactions. It was prompted by workers feeling demands on them exceeded their ability to cope.

What is bullying?

There was no standard definition of bullying or harassment but a commonly accepted theme was behaving in a negative, unwanted and persistent manner to another person. Intent to cause fear, distress or to control the actions of others was an important factor.

Employer obligations

Turner said if employers breach their duties to provide a safe workplace than they were “in the gun”. All employers had a contractual obligation to make sure they were not putting their employees at risk of harm.

Under the HSE Act a hazard included a person’s behaviour and covered physical and mental harm. But most cases were taken via a personal grievance under the Employment Relations Act as it was faster. Some actions had also been taken under the Human Rights Act.

Turner said if an employee felt upset the employer should treat the matter seriously.

What should an employer do?

1. Claims or evidence of stress and bullying should be investigated and responded to without delay. Managers should aim to identify not just the obvious cause but underlying causes, and consider referrals for professional help. Details of discussions with staff should be recorded.
2. Employers should devise a plan of action around workloads, or possibly new positions in the organisation. They needed to keep employees in the loop and have regular meetings with them to check on progress.
3. Disciplinary action, such as a warning or dismissal, against the perpetrators of bullying was important and employers could consider separating employees where there was a clash of personalities.

What can happen if it all goes wrong

Turner gave an example of a case where the employer failed in its duty to protect a truck driver from bullying. The woman had complained for months about being abused and harassed, was regularly sworn at by a manager and given the worst loads to deliver. The bullying had led to stress problems. The driver had at one stage complained to the health and safety manager who later said no action was taken as it was not a formal complaint. Turner said that was no excuse, and a complaint did not even have to be written. “Employers must act if it is brought to their attention.”

The company’s HR manager had recommended the woman get herself counselling or a lawyer, but Turner said it was the employer’s obligation to get her help. The woman kept complaining but the matter was not formally investigated.

There was no response from the general manager until the driver’s doctor provided a letter saying he had had to put her on anti-depressants and sleeping pills to deal with the stress.

The driver took paid leave and later made claims the company had breached the health and safety requirement in her employment agreement, and was also in breach of an implied duty to provide and maintain a safe workplace.

Turner said previous legal cases had established that employers must take reasonable care to avoid exposing employees to unnecessary risk to physical or psychological health.

In this case there had been no performance management process against the perpetrator. The Employment Relations Authority found the company had not done enough and should not have allowed the driver to carry on in the situation.

Turner said the company could have undertaken an investigation to ascertain the facts earlier, and considered interventions like appointing an independent conciliator.

She noted that in the early stages the complainant had just wanted an apology, but things had escalated and resulted in formal proceedings, which proved very expensive for the company.

The company had argued because of the conflicting stories it could not prove who was telling the truth, but that was not an excuse, as the employer has to assess whose version is more credible and decide what to do about it. “The onus is on the employer to reasonably know whether or not employees are suffering from stress.”

In this case the ERA had found it was reasonably foreseeable that the driver would suffer psychological harm, and awarded her lost wages for past and future earnings as well as compensation for the harm.

About this article

This article first appeared inSafeguard update - an email and print newsletter covering the latest Health and Safety issues prepared and written by Safeguard Editor, Angela Gregory.  

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