Recent case law has provided further guidance to employers as to what they may wish to include in a bullying and harassment policy, and what will be considered in the absence of such a policy. Employers need to consider how they are fulfilling their duty of care to employees including, in particular, what they are doing to prevent bullying in their workplace.

 

Office long

The Health and Safety at Work Act 2015 created a legislative framework that requires employers, as a ‘person conducting a business or undertaking’, to ensure as far as reasonably practicable, the health and safety of their employees and others influenced or directed by the business. This is called a primary duty of care.

The scope of this duty of care is a developing area of law. The Employment Court in FGH v RST [1] provides further guidance to employers as to what the legal framework is when considering a duty of care in relation to bullying, and whether an employer’s actions may give rise to an unjustified disadvantage claim by employees.

In FGH v RST the Court assessed that “(t)he ultimate issue for the Court is whether Ms H’s employment, or one or more conditions of her employment, were affected to her disadvantage by an unjustifiable action on the part of RST. These assertions are to be assessed according to the test of justification set out in s103A of the Act: Were RST’s actions, and how it acted, what a fair and reasonable employer could have done in all the circumstances? The health and safety, and bullying, assertions must be considered within this statutory context”.[2]

Bullying claim - intent?

Bullying was an integral component of a number of claims submitted by Ms H against her employer. Ms H asserted that RST’s managers’ actions, including at times a prescriptive application of performance and disciplinary measures, could be considered bullying due to their knowledge of her attention-deficit condition. She alleged RST failed to meet their statutory and contractual obligations of providing a safe and healthy working environment by failing to address the bullying, and it gave rise to an unjustified disadvantage personal grievance.

The Court referenced the WorkSafe guide “Preventing and Responding to Workplace Bullying: The Guidelines”[3] and noted this may be appropriate to consider in the absence of a workplace policy for bullying, or a yardstick to measure a workplace policy against. But, RST did have a Harassment Policy, so the Court referred to this.

RST’s Harassment Policy defined, in part, bullying as “a form of harassment, most often used for one person to have power or unwarranted control over another”.[4]  This drafting allowed the court to explore whether intent was a prerequisite for bullying to occur. Reference was made to the Employment Relations Authority decision Isaac v Chief Executive of the Ministry of Social Development, where it was stated that bullying is about behaviours that are repeated and carried out “with a desire to exert dominance and an intention to cause fear and distress”[5], and other cases that support a position that intent was required for bullying to occur.[6]

The Court reflected, on the WorkSafe Guidelines, and other international legislation and case law, that stated “intent is not always an essential prerequisite”.[7] The Court went on to note that “(a)s a general observation, the existence of bullying may have health and safety implications. Where an appropriate policy as to bullying or harassment is in effect or is applied, any allegations will usually fall to be considered under that policy or those provisions. However, where bullying is not made out on the evidence, that is not necessarily the end of an appropriate health and safety enquiry”.[8]

 

The Court held: the Managers’ behaviours, while very prescriptive in their approach to the performance and disciplinary process, did not constitute bullying pursuant to the Policy- which did require intent at times; and that bullying was not the correct description of the problem.[9] Of interest was a comment that stated a mere reference to the ability of an employer to commence a formal investigation into bullying allegations, did not place a burden on the employer to commence one.

If not bullying - what?

The Court then considered RST’s decision to commence and maintain the two disciplinary processes, one relating to performance management, in the absence of steps to obtain adequate advice about Ms H’s condition. RST was aware of the condition, and their failure to explore the medical issues and how they interacted with her behaviour, fell short of what was expected of a fair and reasonable employer.

The Court in FGH v RST confirmed the 2002 decision of Attorney-General v Gilbert[10].  Employers are still required to take “all reasonable steps to prevent harm to an employee which foresaw or reasonably foresaw or ought to have reasonably foreseen at the time”; and that this duty of care is now implied in common law into employment contracts, in recognition of their special nature.[11] The Court reasonably noted that an employer does not guarantee to cocoon employees from stress and upset, and that their obligations will vary according to the particular circumstances.

RST argued that they considered Ms H’s behaviour, which was at times aggressive, rude or dismissive, to stem from being performance managed. They submitted the efforts that they made were those of a fair and reasonable employer. These efforts included offering, amongst other things:

  • EAP counselling
  • Time to attend the gym
  • Allowing her to spend time on another floor when she became overwhelmed;
  • Amending and changing the structure of meetings to better suit Ms H.

Applying Attorney-General v Gilbert  the Court held that it was entirely foreseeable that Ms H would react in the manner she did, given the very structured performance process and the employee’s underlying medical condition.  The Court stated that RST, “needed to take responsibility for requesting proper medical advice. In the particular circumstances, the onus was on the employer to work with the employee to obtain advice which was adequate in the circumstances”.[12]

This led the Court to conclude that while RST may not have bullied Ms H, it had failed to maintain a safe and healthy work environment. Ms H successfully argued three out of eight of her claims.[13]

Lessons to be learnt

The importance of having a workplace policy that reflects your business operations is critical. As is the need to follow this policy when allegations are put forward. When an employee presents with a medical condition, that has been established as linked to their role, employers need to understand what role they play in ensuring that the condition is addressed appropriately, and the correct advice obtained. Failure to do so could result in an employee claim.

Developing your policy

The Harkness Henry employment team are observing an increase in bullying related claims, and advise and represent both the employer and employee. We strongly recommend that employers have a bullying policy in place that is easy to understand for all participants in the process, and which clearly sets out what is required to establish bullying. We work with our clients to navigate potential pitfalls in drafting policies and can assist our clients in their use.

 

[1] [2018] NZEmpC 60

[2] FGH v RST above n1 at [19]

[3] WorkSafe New Zealand “Preventing and Responding to Workplace Bullying: The Guidelines, February 2014 The Guidelines)”, (February 2014) (The Guidelines): first published in February 2014 and updated in March 2017. https://worksafe.govt.nz/dmsdocument/782-preventing-and-responding-to-bullying-at-work .  

[4] FGH v RST above n1 at [207]

[5] Isaac v Chief Executive of the Ministry of Social Development NZERA Auckland AA200/08, 5 June 2008 at [55].

[6] Evans v Gen-i Ltd NZERA Auckland AA333/05, 29 August 2005 at [2]-[3]; Kneebone v Schizophrenia Fellowship Waikato Inc NZERA Auckland AA31/07, 13 February 2007 

[7] FGH v RST above n1 at [210] see Australian Legislation such as the Fair Work Act 2009, s 789FD, and UK cases on bullying, which do not refer to intentional conduct on the part of the bullying person: Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34, [2007] 1 AC 224; Green v DB Group Services (UK) Ltd [2006] EWHC 1898 (QB). 

[8]FGH v RST above n1 at [218]

[9] FGH v RST above n1 at [288]

[10] [2002] 2 NZLR 342, [2002] 1 ERNZ 31 (CA)

[11] Attorney-General v Gilbert, above n2 at [75], referenced in FGH v RST, above n1 at [195]

[12] FGH v RST above n1 at [276]

[13] FGH v RST above n1 at [277]


Further information