The Copeland Ashcroft Law Team recently presented a seminar roadshow on the crossover between employment law and health and safety obligations, and one of the areas of focus in this presentation was the management of work related bullying, harassment, and stress. This article summarises some of the “need to know” basic tips from the roadshow.
With the recent introduction of the new Health and Safety at Work Act 2015, employers have an obligation to take all reasonably practicable steps to ensure that the health and safety of workers is not put at risk by identifying and managing hazards.
It is important for employers to be aware that hazards in the workplace can include a person’s behaviour and they have a responsibility to take steps to reduce the impact a person’s behaviour has in the workplace. Some examples of behaviours that have the potential to cause harm are work related stress, bullying and/or harassment.
Employers also have an obligation to act as a fair and reasonable employer under the Employment Relations Act 2000 and ensure all actions taken are justifiable and adhere to the duty of good faith.
What is work related stress?
Stress is not clearly defined but is generally accepted to be “an awareness of not being able to cope with the demands of one’s environment”. It is not a medical diagnosis, but it may cause or be the result of workplace hazards, as it has the ability to affect an individual’s physical and mental wellbeing.
Stress can be caused by a vast number of personal factors such as death of a loved one, breakdown of a relationship etc, as well as work related factors such as work load or work relationships.
It would be impossible for an employer to eliminate all sources of stress in the workplace, but they have a responsibility to support an individual whose alleges they are stressed as a result of the workplace and to manage the issues raised by the individual as they would any other health and safety risk.
What are bullying and harassment?
Both bullying and harassment must also be managed in the workplace. If an employee claims they have been bullied and/or harassed whilst at work, the employer has a responsibility to investigate the issues raised and should do so promptly, using an independent investigator where appropriate. If bullying and/or harassment has occurred, the employer needs to act as a fair and reasonable employer according to the circumstances.
Worksafe has defined bullying as:
“Repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
Repeated behaviour is persistent and can involve a range of actions over time.
Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable.It includes victimising, humiliating, intimidating or threatening a person.”
“Harassment” is defined in the Harassment Act 1997, and a definition of harassment may be included in a policy document. However, the behaviours many employers used to think of as harassment are now generally subsumed by the definition and relatively new term “bullying”.
Sexual and racial harassment are separately defined in the Employment Relations Act 2000 and Human Rights Act 1993 as follows:
Sexual harassment:
Language, visual material or physical behaviour of a sexual nature which is unwelcome or offensive to an employee and which is either repeated or so significant that it has a detrimental effect on the employee’s employment, job performance or job satisfaction.
Racial Harassment:
Unwelcome language, visual material or physical behaviour that directly or indirectly expresses hostility against, brings into contempt, or ridicules an employee on the grounds of their race, colour, ethnicity or national origin, which is offensive or hurtful to the employee and which is either repeated or so significant that it has a detrimental effect on that employee’s employment, job performance or job satisfaction.
Employers are required to investigate complaints of sexual and racial harassment as well, and to take steps to make sure the behaviour complained of is not repeated.
Recommendations
Stress, bullying and harassment are, by their nature, tricky issues to manage and employers have responsibilities under multiple pieces of legislation in respect of each. We recommend clear policies with definitions of these terms as well as processes to raise and address complaints as best practice, and that employers seek advice if these issues arise, to ensure a planned and pragmatic strategy to best manage the various risks.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.
Copeland Ashcroft employment law specialist Charlie Arms-Harris recently spoke with Jonny Turner on the Hokonui Muster about the recent legislative changes in employment agreements.
LISTEN HERE
Kate Ashcroft spoke at the Conferenz 30th Annual Industrial and Employment Relations Conference recently, on incapacity, and this article summarises key points from her presentation
Incapacity happens where an employee is unable to perform their role due to a medical condition, which could be physical or mental illness, or injury. The law provides that employers are not obliged to hold a job open or allow employees to continue on reduced or alternative duties indefinitely. An employer may justifiably dismiss where an employee is not fit and able to do the required work and meet the reasonable needs of the employer, and will not be able to do so with a reasonable time in all the circumstances.
As always, an employer has to act in good faith and be fair, and the Employment Relations Act 2000 s103A test for justification applies to any decision to dismiss, that is, whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred. In the incapacity context, fair process is required, and the following factors must be considered in reaching a decision to terminate employment:
The terms of employment (oral or written), including any express obligation to provide employees with reduced or alternative duties and any provisions for termination due to medical incapacity;
The nature of the medical condition or injury including how long it has already continued and the prospects of the employee recovering from it and returning to work;
The nature of employment and whether the employee is in a key or senior position within the business;
Whether the employee had been employed for a long period.Long-standing employment relationships are subject to a higher degree of scrutiny because it is more readily assumed that the parties were prepared to accept long periods of sickness; and
How long the employment was likely to last in the absence of sickness (i.e. whether it was fixed term or casual employment as opposed to permanent, full time employment).
Active absence management will help to ensure that employees do not take advantage of sick leave where it is not justified. Employers may request proof of illness/injury, and if this is not forthcoming or unclear (for example, where the medical certificate just says “unfit for work for x period”), may rely on the duty of good faith to encourage the employee to engage and provide more information. The Medical Council has also issued guidelines about medical certification, and with an employee’s consent, more information can be sought from their doctor. Relevant medical information must be collected and considered in terminating for incapacity where possible, but an employer can make a decision without this if the employee refuses to provide it.
In summary, an employer needs to be able to clearly demonstrate why it has reached the point where it can fairly “cry halt”, that is, it can’t continue to accommodate the incapacity because the business cannot continue to function effectively without the employee fully performing their role. This is often a tricky situation, as it involves so many “shades of gray” – the employee’s position, the employer’s business needs, the nature of the injury/illness, and the information provided all must be weighed in reaching a decision about termination. If you’re managing unwell employees and considering termination, advice is recommended.
The Health and Safety Reform Bill passed its final reading in New Zealand Parliament on Thursday, August 28, 2015. As a result, a new Health and Safety at Work Act will come into force on the 4th April 2016.
It is the first significant reform of New Zealand’s health and safety legislation in 20 years.
Prior to the law coming into force in 2016, WorkSafe New Zealand has assured that it will provide additional information over the next months for businesses and employees. The current Health and Safety in Employment Act 1992 will remain in force until the new Bill becomes law.
The Bill is the first significant reform of New Zealand’s health and safety laws in 20 years and addresses the recommendations of the Independent Taskforce on Workplace Health and Safety.
The Health and Safety Reform Bill was created by the Transport and Industrial Relations Committee appointed by Parliament to review the Health and Safety in Employment Act 1992 and the Machinery Act 1950. The focus was on revising the existing health and safety guidelines in order to make New Zealand “a safer place to work”.
Definitions of “high risk” vs low risk industries
One of the amendments to the Bill will make small businesses in lower-risk industries (with fewer than 20 employees), exempt from requirements to elect health and safety representatives or a health committee whereas those businesses in “higher risk” industries (with fewer than 20 employees), will have to elect health and safety representatives.
There was some initial confusion regarding how the Government would define “high” and “low risk” industries. It has now defined “high risk” as those sectors which have had over 25 fatalities for every 100,000 workers in the last 7 years, since 2008. Also included are industries that had seen 25 serious injuries per 1000 workers or where there was a risk of a catastrophic event causing multiple deaths.
According to these guidelines, most farms would be considered “low risk” industries. Worksafe New Zealand announced there were 108 fatalities in agriculture since 2010, with 12 already in 2015. The statistics released show that quad bike deaths accounted for just under 25% of all the fatalities in the last 5 years.
Workplace Relations Minister Simon Woodhouse acknowledged that although most farms would be labeled as “low risk”, that they were still dangerous places to work and that the use of quad bikes specifically would be under review:
“Too many people are injured on farms. A large number of serious accidents and fatalities are from quad bike accidents, and the government is undertaking specific work to address quad bikes – including setting up an industry-led review of quad bike safety.”
Farmers’ liabilities lowered and farm house is not a work place
The reformed Bill also addresses concerns by farmers who were previously held liable for accidents on their land by recreational users such as trampers and hunters. The revisions in the new Bill mean that a farmer’s responsibility and duty would not apply to recreational users coming onto their farm land – except when work is being carried out in that particular part of the farm at the time.
According to the new Bill, the farm house is no longer considered a workplace (rather it is viewed as a ‘family home’) and as such is exempt from health and safety regulations. A new amendment also changes the definition of “workplace” in relation to farm buildings to areas that are in the immediate vicinity, as well as any part of the farm on which farm work was being carried out.
A supplementary order paper addressing the time allowed to take up private prosecution against an employer was submitted by the Maori Party. This will extend the length of the maximum period allowed for en employee to prosecute an employer, to two years and three months.
Other changes outlined in the Bill regard definitions around the roles of volunteers and PCBUs (Persons Conducting a Business or Undertaking) in organisations as well the addressing the involvement of workers in making provisions regarding health and safety at their work place (please see below for a detailed review of the reforms).
Overview of the proposed changes of the new Health and Safety at Work Act:
Worker engagement and participation
The most significant change here relates to small businesses (with fewer than 20 employees), operating in low risk sectors*, being exempt of appointing a health and safety officer or committee i.e. it is not mandatory, even if it is requested by workers.
However, the Bill strengthens the existing requirements for worker engagement and participation in health and safety matters – whereby workers are empowered to intervene when they see an unsafe situation and are challenged to consider health & safety risks in all work-related matters.
All other employers (including small businesses in high-risk sectors), will still have to hold an election for a health and safety representative when requested.
(*The new regulations will outline which high risk sectors would be subject to this requirement for small businesses).
Multiple Persons Conducting a Business or Undertaking (PCBUs)
The changes specify that the duty to consult, cooperate and coordinate activities sits with the Persons Conducting a Business or Undertaking (PCBU) i.e. not with all duty holders and multiple PCBUs operating on shared premises must coordinate health and safety activities where these overlap.
In the proposed Bill, a duty holder’s obligations to manage the health and safety risks are limited to doing what is in their ability(*) to control and manage, along with what is reasonably practicable for them to do in order to manage risk in the work place.
Under the new ruling, Courts will have to consider harm (both actual and potential) and death caused by a breach of duty in their sentencing. It is still unclear what could happen as a result of this.
(* Previous wording in the Bill referred to a duty holder’s “capacity” to mitigate risks)
The duty of officers
Under the revised Bill, the officer’s duty will apply only to employees who have a very senior governance role in the organisation – a role that allows them to exercise significant influence over the management of the business (e.g. a chief executive of the company or high level manager).
The wording in the reformed Bill also makes it very clear that officers must/can only do what is within their ability to influence and control, when managing risks.
Volunteer workers
The new Bill makes a distinction between a volunteer organisation where volunteers work together for community purposes without employee status and those volunteer organisation which have employees. Under the Bil, the former organisation that does not have any employees is known as a volunteer association and is not considered a PCBU, so the Bill will not apply to it.
A volunteer organisation which has one or more employees will be considered a PCBU and will have the same duties as a PCBU to ensure the health and safety of its workers and others.
Does your business employ casual volunteers or volunteer workers?
Where volunteers carry out work for a PCBU, the revised Bill now distinguishes between casual volunteers and volunteer workers.
Volunteer workers are people who regularly work for a PCBU with its knowledge and consent on an ongoing basis and are integral to the PCBU’s operations.
The health and safety of both casual volunteers and volunteer workers are covered by the PCBU’s obligation to abide by the Bill.
Definition of workplace
The main revision here is the definition of “workplace” which has been changed to reflect the fact that some areas are not used as a workplace all the time (e.g. the farm house on a farm).
Under the new Bill a workplace is defined as a place where “work is being carried out or is “customarily” carried out for a business or undertaking” – this includes any place a worker goes or is likely to be while at work.
So, in the case of a farm, this would only extend to the farm buildings and structures necessary for the operation of the business and the areas immediately surrounding them.
Whereas other parts of the farm are not considered a workplace under the revised Bill, apart from those times when farm work is being carried out.
Duty of PCBUs who manage and control a workplace
A major change is here is that the PCBUs who manage the workplace do not owe a duty to people who are there for an unlawful purpose or, for farming purposes, the duty of the PCBU applies to a workplace which includes:
– farm buildings (but excluding the farm house as the family home)
– structures necessary for the operation of the business and the areas immediately surrounding them.
Now is the time to revise your health and safety procedures in order to make sure that they adhere to the new guidelines set out in the Bill.
If you have any questions regarding the impact the Health and Safety Reform Bill may have on you and your business in the near future, please don’t hesitate to contact us.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.
25 November 2015
Media release – Copeland Ashcroft Law
Recent events are a timely reminder that farmers and growers need to be vigilant when hiring migrant workers and ensure they have their paperwork in order, says employment law specialist from Copeland Ashcroft Law, Charlie Arms-Harris.
Arms-Harris is referring to the recent Filipino migrant worker false documentation scam, where Filipino dairy farms sold fake work experience documents for up to NZ$15,000.
Given the potential consequences for the rural sector, Immigration Minister Michael Woodhouse announced new rules for those Filipino workers who may have provided incorrect information on visa applications, such as overstating their qualifications and work experience.
Applicants who admit that they previously provided incorrect information, but who are compliant in all other aspects, will be eligible to apply for a further work visa.
While Arms-Harris believes this was a sensible approach by Immigration New Zealand, it has definitely put the industry well and truly back on the radar of inspectors.
“Typically, labour inspectors and immigration officers work together, visiting farms and orchards in pairs. They aren’t necessarily giving any forewarning, and if they do, it may be a brief phone call a few days prior to the visit,” says Arms-Harris.
Arms-Harris also points out the nature of the visits have changed somewhat. “Typically labour inspectorate visits were all reactive or complaint based, but that’s changed and now it’s more like 40 per cent complaint based and 60 per cent proactive visits or cold calling.”
Arms-Harris says that it is vital farmers and growers know what an immigration officer can legally do, what happens during a typical inspection and what they need to be doing to ensure they are meeting their obligations.
“Immigration officers have the power to enter and inspect the records of employers. These records would generally include wage and time records and any other documents relating to remuneration or employment conditions,” says Arms-Harris.
“If you do get a visit from inspectors, they will likely interview the employer. They can ask questions about how you recruit your migrant workers, what external recruitment companies you use, and whether you feel that the qualifications and the experience of your migrant workers recorded on paper, match their skills. Employees will then often be interviewed,” says Arms-Harris.
Arms-Harris reminds employers that it’s essential to verify a potential employee’s right to work in New Zealand as part of their recruitment process.
“The best way to check someone’s right to work in New Zealand is to view their passport. You can then use the Immigration NZ online VisaView service to check whether the person is entitled to work for you. If you have any doubts, call Immigration New Zealand or an employment lawyer for further information,” says Arms-Harris.
According to Arms-Harris, it is also important to check the conditions of a person’s visa.
“Some work visas specify the company name, job title and location for which the visa is granted. This should match your entity otherwise the employee is not entitled to work for you.”
Finally, she recommends that you keep a copy of work visas/passports on employees’ files as well as a record of visa expiry dates.
— ENDS —
FOR FURTHER INFORMATION:
Charlie Arms-Harris – Employment Law Specialist, Copeland Ashcroft Law
Email: charlie.arms-harris@copelandashcroft.co.nz
Phone: 027 4152 538
Charlie was interviewed by Jamie Mackay on the Farming Show – Listen to the podcast HERE
Health and Safety is key to running a successful business. We thought it timely this Christmas to remind you about how to comply with your legal obligations and ensure everyone enjoys going home safely to celebrate this holiday season.
Partying at Christmas
Many workplaces celebrate the end of another year by getting festive with wine, food and music. But what happens if the Christmas party goes wrong? Is an employer liable if an employee drinks to excess, falls over and breaks something or inappropriately grabs a colleague? Could an employee lose their job if they were the culprit? As always, it depends. Think about where the party is, who is holding it, what steps you can take to make things safe, and what you would normally do at work (because you probably are!). Not just because the law may require it, but because it’s the right thing to do.
For example, employers holding after work drinks on-site should consider canning it if they can’t do it safely. Start by being a responsible host – its still a workplace and staff under the influence of alcohol can create a risk of harm if their behaviour gets boisterous. Ensure adequate food accompanies any alcohol being served and that only those aged 18 and over are drinking. Put on a taxi to stop staff driving home after too many, and make it clear in your drug and alcohol policy that showing up to work under the influence the next day is a disciplinary matter. Lead by example!
Take the time to outline what appropriate standards of behaviour are in your policies. Although it’s ok to relax a little bit, tell staff its not a chance to overstep personal boundaries simply because it’s the Christmas party. An employee inappropriately grabbing a colleague cannot hope to excuse themselves by saying they weren’t at work or had too much to drink: But for the employment relationship, it wouldn’t have happened – they risk being fired for misconduct at the Christmas party even if it is outside normal working hours.
And while we’re on policy – you might like to sharpen up your social media one too!
With all this in mind I could understand why a weary employer might be feel like being the Grinch who stole Christmas – No party, no booze, nothing spontaneous and certainly, no fun. But the reality is that many employers enjoy the festivities themselves and it’s a balancing act between being responsible about health and safety, and eliminating risky behaviour. If you’re unsure what’s best this festive season, please ask!
The Legal Bits
Currently the Health and Safety in Employment Act 1992 places the primary responsibility for staff safety squarely on employers. An employer must take “all practicable steps” to ensure the safety of staff at work. But what does this actually mean? At the very least you must:
Have an effective hazard management system in place that identifies existing, new and significant hazards on an ongoing basis (Think: Living, Breathing Hazard Register and Controls).
Eliminating significant hazards.But if you can’t or it’s not practical to, you must isolate or minimise significant hazards such as ensuring staff use suitable clothing and equipment (Think: PPE).
Train and supervise staff to ensure they have the right knowledge and experience they need to work safely on the job, and with any plant or substances they’re using (Think: New staff Inductions)
Involve staff in health and safety matters by ensuring they get reasonable opportunities to help you improve it (Think: Regular meetings and discussions on health and safety)
Monitor an employee’s exposure to hazards and obtain their informed consent to monitoring their health in relation to a hazard (Think: Health Checks and Drug and Alcohol Testing)
Record and notify Worksafe where appropriate of accidents and serious harm (Think: Prioritising Paperwork).
As well as all this, employers must ensure their staff don’t do anything that might harm anyone else in the workplace, and that any contractors aren’t harmed while doing work you’ve engaged them to do. And if you control a workplace, you also have to take all practicable steps to ensure hazards don’t harm anyone else. Employees need to ensure their own safety and that they don’t cause harm to others too.
If an accident happens in your workplace and an employee or someone else is harmed, WorkSafe or the Court will consider whether you have taken all the steps that were reasonably practicable to take in all the circumstances to protect staff. What the industry is doing and the “current state of knowledge” about harm, how to prevent it and the availability and cost of the means you could use, are all relevant. This is why having a health and safety policy and plan tailored specifically to your workplace is so important.
An employer’s obligations will only increase under the Health and Safety Reform Bill. It will become even more important for you to ensure you have a health and safety policy and plan tailored to your workplace – it’s a no brainer. Sign up to our updates to find out how this Bill progresses through Parliament.
Health and safety leadership is key to improving organisational health and safety culture, and it needs to be “informed leadership”. That is, in order to lead health and safety in your business, you need to have a working understanding of the health and safety duties and obligations.
All Officers, including Directors, have a duty to exercise due diligence to ensure the business complies with health and safety duties. One component of due diligence includes taking reasonable steps to “acquire, and keep up to date, knowledge of work health and safety matter”. In order to make critical decisions in regard to health and safety the Officers must have knowledge of the relevant health and safety duties.
The due diligence obligations are individual to each Officer. Gaining and acquiring knowledge in health and safety matters is not something that can be delegated like some of the other duties.
Helpfully, WorkSafe NZ has published a number of recent guidance and interpretative guides on the new law, which are a great (and free!) starting place to get your head around this:
Maintaining current knowledge is of course key to keeping on top of the developing law in this area, and you can even subscribe to receive updates to these and other new documents by subscribing to WorkSafe NZ publications here.
There are many other options to keep up to date, including health and safety forums, industry discussions, webinars, and training courses, and we’re working with health and safety leaders across a range of industries, providing specific advice and bespoke training, as well as representation. If you’d like specialist help with your organisational health and safety, contact our team today.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your lawyer for any questions specific to your workplace.
The new Health and Safety at Work Act 2015 (“Act”) has been in place for several months now, and most businesses are getting to grips with the new terminology and concepts, including the two key concepts of hazard and risk explored in this article.
The definition of “hazard” is broad – encompassing anything that could cause harm, in terms of death, injury or illness to a person. It includes a person’s behaviour which has the potential to cause harm, “whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour”. The definition of risk is also broad, and risks to both physical and mental health must be managed.
Example: If a ladder is a hazard, a couple of the risks are the ladder falling onto a person, tripping over the ladder, falling from the ladder.
Once work related hazards are identified, the risk of harm should be assessed using a risk matrix, to measure the likelihood of the harm occurring and the how serious the harm could be and rate the risk accordingly. If you cannot eliminate the risk, then, the risk must be managed by applying the following controls, in order, to take the safest approach as reasonably practicable in the circumstances:
Substitution: substitute the hazard giving rise to the risk with something that gives rise to a lesser risk. E.g. instead of using an acid based cleaning solution, use an organic product with no harm side effects. Practically, the result of this form of substitution is elimination of risk.
Isolation: isolate the hazard, to prevent anyone coming into contact with it. “Isolation” is any form of barrier between a person and a hazard. E.g. Many carparks now have a metal barrier for pedestrian walkways, isolating vehicle hazards and preventing risk of harm by contact between cars and shoppers.
Engineering controls: these are mechanical or structural controls such as sound proofing, guards or interlocks. E.g. where working with compressed air with a compressor in the same building as people work, engineering controls like sound proofing could minimise the risks created by the compressor’s noise.
Administrative controls – training and procedures: If none of the above controls can be implemented, or can’t be implemented straight away, administrative controls should apply. E.g. retraining, supervision, and rotation of workers performing repetitive tasks, to minimise hazard associated risks.
Personal protective equipment (PPE): The last control option is PPE. The rationale for this being a final resort is that PPE’s reliability to prevent harm is dependent entirely on a person doing the right thing every single time, yet mistakes are inevitable. E.g in a job that discharges chemicals to the atmosphere, for example, spray painting or asbestos removal, forgetting to change a respirator (PPE) filter could be fatal. An engineering control such as a filtered extraction system would remove reliance on PPE for safety.
Your health and safety management plan should include a process to identify hazards and associated risks, and manage these. For help with ensuring your plan does this effectively, we recommend seeking advice. We can assist with plan auditing, gaps analysis and software recommendations – contact us for help.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your lawyer for any questions specific to your workplace.
It’s a common misconception that an employer can simply not require an employee to attend work where a disciplinary investigation is underway. However, this amounts to suspension unless it is agreed with the employee, and unlawful suspensions are risky in terms of potential personal grievances. Employers therefore need to tread carefully when sending an employee away from the workplace.
What is suspension?
A suspension from work is where an employee remains employed but is directed to temporarily stay away from the workplace.
When can an employer lawfully suspend?
If allegations of serious misconduct are made against an employee, it may be appropriate for the employee to be suspended however this will depend on the nature of the allegations. It is best practice to only suspend an employee if there is a clause in the employment agreement which allows it, as only in very limited circumstances will a suspension be lawful otherwise.
An employer must act as a fair and reasonable employer when implementing a suspension. This includes having good reason for the suspension, and following a fair process in consulting the employee about the proposal to suspend before the decision to do so is reached. There must be a link between the alleged misconduct by the employee and the need to remove that person from work – an employer cannot use suspension as a form of punishment.
Examples of reasons that may justify suspending an employee include if an investigation would be compromised by the employee being at work, or if the employee’s presence at work is a risk to health and safety (for example, if the allegation is that the employee has been at work under the influence of drugs or alcohol and the workplace is safety sensitive.)
Suspension should be paid, except in extreme situations where suspension may be long term, for example, where a related Police prosecution means the person will be incarcerated and unable to answer disciplinary allegations.
If an employer breaches their legal obligations when suspending an employee, by either suspending without cause or failing to follow a proper process, they are susceptible to a potential unjustified disadvantage personal grievance. We strongly recommend seeking professional advice if you are considering suspending any employee. Our team of experts can help you in this area.
Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.
Lucia Vincent, Senior Solicitor*
NZISM Otago Branch Seminar – 2 July 2015
Bullying hurts. Most know the sting of a hurtful jibe or playful punch. Being teased as a child forced me to grow a thick skin. I don’t wince if someone calls me freckle face anymore. But it becomes more sinister when adults are involved; especially at work where many of us spend most of our waking day. Why should employers care? And what does it have to do with health and safety?
Why should Employers Care?
Because it pays to. Bullies harm people, productivity and ultimately the bottom line. Like any unidentified hazard, bullies cause casualties before you even know they exist. An employer can no longer pretend that hurt feelings won’t cost them financially. Increased levels of sick leave, unhappy and unproductive teams, problems with retention and recruitment all cost money as well as morale and could indicate your workplace is suffering from bullying.
Both bullies and complainants can get litigious too. For example, an employee may raise a personal grievance (PG) for unjustified dismissal even if they have resigned because of a bully – an employee forced to resign because their employer failed to take their concerns seriously can claim they have been constructively dismissed. The Labour Court called this the “…wolf of dismissal in the sheep’s clothing of resignation.”[1]
A forced resignation could result from an employer behaving in a way that seriously damaged their employee’s trust and confidence in them. An employer may undermine an employee’s trust by failing to take all practicable steps to ensure their safety at work. Think of a situation where an employer fails to follow up a complaint of bullying behaviour causing the employee to become depressed due to work-related stress. Bullying in this sense is hazardous to your employees’ health and has to be dealt with under the Health and Safety in Employment Act 1992.
Bullying or just plain rude?
Forgetting to wish your workmate “Happy Birthday” or providing constructive criticism about an employee’s performance are unlikely to meet the threshold in the absence of something more calculated or unfair. The Employment Relations Authority has accepted that bullying is behaviour that is:
… repeated and carried out with a desire to gain power or exert dominance and an intention to cause fear and distress. This behaviour usually includes elements of personal denigration and disdain of the person subject to it. It is intended to control the behaviour or actions of its target in particular ways.[2]
Although no statutory definition exists in New Zealand, WorkSafe has defined bullying in Guidelines as follows:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
Repeated behaviour is persistent and can involve a range of actions over time.
Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.
A single incident of unreasonable behaviour is not considered workplace bullying, but it could escalate and should not be ignored.[3]
Bullying behaviours are described as commonly presenting in two main categories – attacks that are personal and direct (such as insulting, teasing, jokes, verbal abuse and using obscene or offensive language), or task-related and indirect (such as setting impossible deadlines, constant criticism of work, making hints or threats about job security and scapegoating).[4]
Bullying is not setting high performance standards, occasional rudeness, constructive feedback, a manager requiring reasonable instructions to be carried out or single incidents of unreasonable behaviour.[5] Isolated incidents of rudeness are unlikely to support a constructive dismissal claim either. The Labour Court commented that:
… the law does not compel parties to a contract to do more than perform it and it does not require them to perform it politely, nor is this Court empowered to enforce courtesy in the workplace, no matter how desirable in that environment that quality undoubtedly is.
The Employment Relations Authority has accepted that “Workplace bullying is difficult to define” and has referred to the Guidelines to help undertake this task.[6] We would be well advised to follow suit.
Not my problem?
Clearly an employer is responsible if they bully an employee directly. But an employer is also responsible for the actions of an employee who has authority over another (such as a manager).[7] An employer must also ensure that members of the public and independent contractors do not create a hazardous working environment for their staff.
Managers with a domineering, blunt and abrupt management style shouldn’t assume staff can bat it back to avoid their obligations either. It is not acceptable for a manager to expect an employee to “sling it back” even if other staff do, to keep an aggressive exchange even.[8] This is especially so if a manager goes beyond generally accepted management norms. Similarly, an employer may not be justified in readily accepting a resignation where an employee faces difficulty dealing with a well known hazard that the employer has failed to provide training on – like the aggressive dogs that Power Meter Readers might face.[9]
The risk of bullying from the public can also pose a risk worth remedying. For example, Council employees have been held to have reasonably objected to wearing name badges that displayed their surnames due to their concern that displaying their surnames could enable disgruntled members of the public to track them down to their home address and confront them.[10] In the case referred to, the Employment Court accepted that:
It was not being unduly alarmist to accept that there is a reasonable possibility that they could be subjected to violence or harassment at home as a result of being identified at work by a hostile member of the public.
Removing surnames from badges amounted to an “entirely practicable” step for the employer to take; the requirement to wear badges with surnames, unreasonable.
Handling Health and Safety
Currently employers must comply with a raft of health and safety related legislation including the Health and Safety in Employment Act 1992, Accident Compensation Act 2001 and rules relating to hazardous substances and smokefree workplaces. To top this off we have the Health and Safety Reform Bill to deal with.
Every employer must take all practicable steps to ensure the safety of employees while at work.[11] This requires an employer to take a step if it is “reasonably practicable” to take in the circumstances having regard to several factors including the nature and severity of any injury that may occur, degree of risk or probability of injury or harm occurring, how much is known about the hazard and ways of controlling the hazard and the availability and cost of safeguards.[12]
The definition of hazard includes actual and potential sources of harm and situations where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person, whether that behaviour results from physical or mental fatigue, drugs, alcohol or another temporary condition. The definition of harm includes physical or mental harm caused by work-related stress. Bullies can cause their targets to feel anxious or depressed, feelings that as we know can result in time off work and long term health consequences. Sound familiar?
The Court of Appeal has firmly rejected any argument that work related stress is never an employer’s problem – it will depend on the specific circumstances of each case:
The standard of protection provided to employees by the Health and Safety in Employment Act is however a protection against unacceptable employment practices which have to be assessed in context. That is made clear by the definition of “all practicable steps”. What is “reasonably practicable” requires a balance. Severity of harm, the current state of knowledge about its likelihood, knowledge of the means to counter the risk, and the cost and availability of those means, all have to be assessed. Moreover, under s19 the employee must himself take all practicable steps to ensure his own safety while at work. These are formidable obstacles which a potential plaintiff must overcome in establishing breach of the contractual obligation. Foreseeability of harm and its risk will be important in considering whether an employer has failed to take all practicable steps to overcome it. These assessments must take account of the current state of knowledge and not be made with the benefit of hindsight. An employer does not guarantee to cocoon employees from stress and upset, nor is the employer a guarantor of the safety or health of the employee. Whether workplace stress is unreasonable is a matter of judgment on the facts. It may turn upon the nature of the job being performed as well as the workplace conditions. The employer’s obligation will vary according to the particular circumstances. The contractual obligation requires reasonable steps which are proportionate to known and avoidable risks.[13]
Being Prosecuted
Don’t assume immunity from prosecution just because you’ve settled your PG. Admittedly, work-related stress claims are not as popular in health and safety prosecutions. But employers can and have been prosecuted for breaching its obligations to staff in respect of work-related stress.[14] One case demonstrated that prosecution can follow the parties settling the employment relationship problem. Any compensation confidentially paid has been taken into account when setting the amount of any reparation in sentencing.[15]
Employers ought to take note that the Judge in the case referred to above, emphasised that in relation to sentencing for this work-related stress claim “there needs to be a deterrent effect in sentencing to discourage any employer from avoiding responsibility for the health of their employees.”[16] Further that:
Employers have to be vigilant that the stress placed on an employee is reasonable. There will always be stresses in a job, but they must not become health-threatening. Where employees have stressful work conditions and special medical difficulties advised to the employer, then immediate remedial action is required.[17]
Employees and the self employed in small operations won’t escape prosecution even if no harm is actually caused. The High Court has recently demonstrated a willingness to impose penalties that “bite” where the risk being taken has been repeatedly identified by WorkSafe and warnings apparently disregarded.[18]
Liabilities for those involved in workplaces will continue and arguably increase if the Health and Safety Reform Bill is passed in its current form. For example, the primary duty holder under the Bill would require any person conducting a business or undertaking (defined in proposed section 13) to “so far as is reasonably practicable,” to ensure the health and safety of workers – cost is a final consideration.
Under any regime, it will always be essential to have a health and safety policy, to ensure that staff are trained in that policy and understand all the hazards in their workplace and how to work safely. Bullying must continue to be dealt with.
Dealing with it
Increase awareness of the problem posed by bullies in the workplace. Employers should start by checking that a robust and realistic policy on bullying is in place, changes consulted on, its contents regularly reviewed and that managers apply it consistently. Clearly identify bullying as a hazard and aim to establish a culture that treats complaints seriously and encourages employees to report concerning behaviour – whether as a witness, victim or a bully. Employers shouldn’t wait until a serious problem arises before putting in place systems to deal with it.
Upon receiving a complaint an employer must investigate. Depending on the seriousness and nature of the allegations, investigations can be carried out internally or externally. Appoint someone impartial who possesses the right skills and expertise to appropriately manage the issues.
At the outset, explain the rights and responsibilities to all parties such as:
Expected timeframes
Who and how the complaint will be investigated (be clear about any limits on confidentiality and that you will treat all parties with sensitivity, respect and courtesy)
What information will be received and by whom e.g. statements and records of discussions
Who can be present at interviews (always suggest bringing a support person and/or representative), and whether someone can refuse to participate
What support is available (counselling or other support options are essential)
What if any interim measures will be implemented to ensure the safety and welfare of the parties involved especially the complainant (this may include redeployment or reassignment to another area of the organisation ideally by agreement, mutually agreed paid leave and if the circumstances justify it, possible suspension of the alleged bully)
An Investigator is essentially on a fact finding mission and should begin with interviewing and understanding clearly what has been alleged from the complainant. Further investigations would normally including interviewing anyone else all involved especially witnesses to any events and documentary evidence where available. This process will often result in a written report as to what occurred and whether the behaviour is bullying, with recommendations for what steps should follow.
Whoever investigates, it is the employer who must ultimately decide on a course of action following the report, including where the allegation is substantiated, whether or not to initiate a disciplinary process and what if any action will be taken. Even if bullying isn’t substantiated, a prudent employer will scrutinise the adequacy of their policy, workplace culture, training (often on communication for a manager subject of a complaint), support (such as counselling) and facilitating a meeting between parties to resolve any conflict (this could include mediation).
Disciplining for Health & Safety Breaches
An employer may initiate a disciplinary process when an employee commits an act of misconduct or serious misconduct. Several reasons exist for starting such a process. These range from serious allegations that potentially warrant summary dismissal (such as stealing or proven instances of bullying that are often able to be classed as health and safety breaches) to more minor offences that perhaps require only warnings (such as being a bit late). As always there are two aspects to consider: Substantive and Procedural fairness.
Substantive fairness is essentially asking whether your employee has behaved badly enough to warrant the disciplinary action you want to take. For example, being consistently late might be warrant a warning whereas stealing or ongoing bullying attracts more serious sanctions. In assessing whether an employee’s conduct could be classed as misconduct of a serious or less serious nature, the employer must have reasonable grounds based on clear evidence and/or findings from a reasonable investigation for their decision.
The Fundamentals for any disciplinary process and decision are the duty of good faith and test of justification. Employers and employees must deal with each other in good faith. In addition, an employer must be fair and reasonable in its decision making. These concepts are vital to an employer’s understanding of its obligations and rights and highlight that when dealing with each other parties must exhibit good faith behaviour.
Good faith requires that you don’t do anything directly or indirectly that will or is likely to, mislead or deceive either an employee or a union. Both employee and employer must be active and constructive in establishing and maintaining a productive employment relationship in which they are at least responsive and communicative.
Additionally, an employer must provide an employee with access to information and an opportunity to comment on that information, where a proposed decision will, or is likely to, negatively impact the ongoing employment of that employee. That opportunity to comment must be given before any decision is made.
Keep It Real
Employers are frequently told what they should and shouldn’t be doing – don’t despair! Bullying is not a new issue but we are much more aware and well resourced than we have ever been as a country to deal with it. Start with reading the Guidelines and choose one thing you can change in your workplace to improve your culture today to be less tolerant of bullying behaviour.
*The Author would like to thank Jessica Frame for her assistance in preparing this paper.
Disclaimer: Copeland Ashcroft Law and Lucia Vincent produced this Paper and supporting materials to provide a brief summary of employment law issues and developments affecting employers and their businesses. Although we have taken care to ensure accuracy, details may be omitted that may be directly relevant to you. This Paper, supporting materials and the information contained within them do not purport to be and should not be used as specific legal or professional advice and we accept no responsibility for any errors or omissions or for any loss or damage resulting from reliance on or use of same. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.
© Copyright Copeland Ashcroft Law 2015
[1] At 803, New Zealand Woollen Workers IUOW v Distinctive Knitwear New Zealand Ltd (1990) ERNZ Sel Cas 791
[2] At 49, Menelda v Publicis Mojo Ltd [2007] NZERA Auckland AA403/07
[3] Best Practice Guidelines, “Preventing and Responding to Workplace Bullying” (February 2014), at page 6, Author’s emphasis
[4] Ibid at pages 6-7
[5] Ibid at page 11
[6] See for example, Dent v Waikato District Health Board [2014] NZERA Auckland 526, at 77 and Hartley v Carter Hold Harvey Limited [2014] NZERA Christchurch 196, at 73 – 74
[7] Section 103(2) Employment Relations Act 2000
[8] See Edmonds v Attorney General [1998] 1 ERNZ 1
[9] Ibid, at 33
[10]Ibid, at 40
[11] Section 6, Health and Safety in Employment Act 1992
[12] Section 2A, Ibid
[13] Attorney-General v Gilbert, 14/3/2002, CA , at 83, Author’s Emphasis
[14] See for example, Department of Labour v Nalder & Biddle (Nelson) Limited, 13/4/05, DC Nelson
[15] Ibid
[16] Ibid, at 8
[17] Ibid, at 11, Author’s Emphasis
[18] See for example, Jones & Ors v Worksafe New Zealand [2015] NZHC 781 where penalties totalling $30,000 and $12,000 were imposed on the Appellants for failing to wear a quad bike helmet as well as having young children as passengers.