How The Law Deals with Workplace Bullying

Anna Fitzgibbon, Partner, LawWorks

Three Key Areas

The Legal Framework– Bullying – the legal basis– Health & Safety in Employment Amendment Act 2002– Personal Grievance claims under Employment Relations

Act

Recent Case Law– Health & Safety in Employment Amendment Act prosecution– Personal Grievance claims

Dealing with bullying claim– Assessing genuineness of claim– Legal strategies for managing bullying and harassment in

the workplace

The Legal Framework

Increase in bullying related claims - why?– AG v Gilbert – work related stress claim – Workplace bullying – Andrea Needham– Health & Safety in Employment Amendment Act 2002

The Legal Framework

AG v Gilbert – Implied duties to take reasonable steps to maintain a safe workplace

Health & Safety in Employment Amendment Act 2002– Came into force on 5 May 2003– S.4(8) repeals the definitions of the terms “harm” and

“hazard”– Extended definition of “harm” to include workplace stress– Definition of “hazard” includes a person’s behaviour being an actual

or potential cause of harm to another person

The Legal Framework

– “harm – – (a) means illness, injury or both; and– (b) includes physical or mental harm caused by work – related

stress– “hazard” –– (a) means an activity, arrangement, circumstance, event,

occurrence, phenomenon, process, situation, or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm; and

– (b) includes -• (i) a situation where a person’s behaviour may be an actual or

potential cause or source of harm to the person or another person

The Legal Framework

– Under the HASE employers have a duty to take all practical steps to ensure their safety and the safety of others

– Employer may be prosecuted by OSH if has not ensured safety of employee and employee suffered work related stress

– Department of Labour v Nalder & Biddle

The Legal Framework

Personal Grievance Claims – Unjustifiable disadvantage– Unjustifiable constructive dismissal– (A.G v Gilbert (CA))

– Key Elements• Duty to maintain a safe workplace • Employee suffered harm• Employer has breached the duty• Harm to the employee caused by work related stressors• Breach of duty was sufficiently serious to make it reasonably foreseeable• As a result employee resigned – constructive dismissal

- Whelan v A.G.

Case Law

Department of Labour v Nalder & Biddle– First OSH prosecution under HASE – Employee experiences high workloads following resignation of

financial manager and assistant – Suffered stress related symptoms including chest pains– Within three months employee notified Chief Executive of

medical condition – Attempts to employ staff made but work pressure continues

Case Law

Department of Labour v Nalder & Biddle cont.– all practicable steps to ensure safe workplace not taken– Medical evidence showed causative link between medical

problem to work related stressors – Whilst steps were taken to find solution, none found– Company fined $8,000 plus medical and legal costs – Confidential settlement also reached under ERA

Case Law

Koia v Attorney General in respect of the Ministry of Justice– Case flow manager at Rotorua District Court– Changed management programme creates pressure for staff– Conscientious employee– Perceived failure to respond by Department to his requests for

assistance– Court accepts stressors in the workplace– No clinically significant disorder although possibility may arise

in the future

Case Law

Koia cont…– Court accepts that no systematic programme for identifying and

dealing with stress – No breach of duty because of approach taken by sensitive

management– Not foreseeable as Mr Koia did not give sufficient notice of the

stress he was under

Case Law

Whelan v Attorney General for Children & Young Persons Service– Whelan employed as a risk assessment supervisor for CYFS

dealing with child abuse cases– Takes 2 year study break because of work pressure– On return from study break employee requests transfer– Despite requests employee assigned to same role previously

found stressful– Increasing workloads; poor resourcing and inexperienced and

incompetent team; assault on another social worker in presence of employee contribute to stress

– request to transfer blocked by manager;– Employee suffers major health collapse & retired on medical

grounds

Case Law

Whelan cont…– Medical specialists support view that medical conditions caused

by work related stressors– Court accepts employee’s workload was excessive and pressure

unremitting– Work areas in a “state of crisis”– Employer knew work by its nature was highly stressful and

employees affected by stress– No remedial action taken by employer– Breach of contractual duty of care– Employer had failed to take steps to avoid foreseeable ill health

consequences– Employer failed to provide a safe system of work

Dealing With Bullying Claim

– Unjustifiable disadvantage – s103(1)(b) ERA• (a) intervention to alleviate bullying/stressful work situation• (b) response to allegations of poor performance• (c) to prompt a negotiated exit because of (a) or (b)

– Unjustified dismissal – s103(1)(a) ERA• (a) employee’s health has suffered because of bullying and stress – resign• (b) counter attack in response to disciplinary process• (c) to prompt negotiated exit because of (a) or (b)

Dealing With Bullying Claim

Responding to a Claim – Be proactive – investigate claims– Consult with employee to identify “particular stressors”– Deal with stressors e.g. work organisation, workload,

distribution, conflicts - bullying– Counselling/EAP– Proper medical diagnosis by 1 or more practitioners (see OSH

guidelines)– Sick leave– See Williams v The Warehouse Ltd– Check employment agreements and policies, training

Summary

– Increase in bullying and work related stress claims in the last few years- A.G v Gilbert- HASE amendments- Heightened public awareness (Andrea Needham – bullying)

– OSH can prosecute for harm caused by workplace stress (Dept of Labour v Nalder & Biddle)

– Employee can bring a personal grievance claim alleging constructive dismissal for workplace stress if necessary elements present (Gilbert, Whelan)

– Case law confirms liability of employers who fail to provide safe workplaces resulting in reasonably foreseeable illnesses

– “Bully” can bring a claim of unjustifiable dismissal – Williams v The Warehouse Ltd