Kelly Tanner Workplace Bullying Case Awards $40,000 at the ERA - May 2011

A recent determination in the ERA between a Tauranga truckdriver and a local transport firm highlights the requirements of employers in dealing appropriately with issue’s of workplace bullying in an appropriate timely manner.

Advocate’s from Tauranga Advocacy Network were heavily involved in the initial case, and were the primary liaison between the two parties. Post-mediation, the case was attended by Warwick Reid of Reid Legal Services.

The employee had raised a complaint in January 2010 to the employer alleging bullying and requesting the employer investigate with an understanding of the negative health impacts the alleged actions were having on her.

The employer had no documentation between January and July 2010 to show that any substantial action had been taken to address the alleged bullying or protect the employee from further health – impacting stress, and took no steps to prevent the bully from striking again. In July 2010, the employee went on sick leave which would prove to be extended by medical certificates to early October 2011.

When the employer and our advocate met, we requested that they investigate the matter. It was pointed out to the employer however, that harm had already occurred to the employee, and that the lack of documented evidence of substantial action to protect the employee may well leave them liable under current legislation.

Several interesting points were gleaned from this case, and some other matters in recent news:

• Egg shell skull principle - The eggshell skull rule (or ‘thin skull’ rule or ‘you take your victim as you find him’ rule of the common law) is a well established legal doctrine. Link >>
• Vicarious liability for managers actions - meaning that the actions of an employee are, for the purposes of the law, regarded as the actions of the employer. Link >>
• Mental harm (understanding) – details and definitions of mental harm, and the applicable legislation and payment expectations. Link >>
• Workplace Bullying as a criminal action – becoming otherwise known as “Brodies law”, The Work Health and Safety Bill 2011 enacts the nationally agreed Model Work Health and Safety Act (Model Act) in NSW to take effect from 1 January 2012. Link >>
• Firearms in the Workplace - it will be interesting to see if this gets any attention, as we believe it's just as important to tighten current firearms laws as it is to introduce new legislation.

This is one of New Zealand’s larger awards in a workplace bullying dispute. Workplace bullying is a serious matter that employers need to take more care than ever to manage appropriately. New Zealand is several years behind Australia in dealing with bullying from an Employment Relations perspective, employers and managers would do well to take heed that our cousins across the Tasman are now contemplating whether workplace bullying should be a crime punishable under law by a maximum imprisonment term of up to 10 years.

In light of this and the bullying cases, New Zealand employers should take great care in establishing and firmly implementing consistent and coherent policies and procedures to protect themselves and their employees from any harm.

If you believe you or someone you know is being bullied at work, give Tauranga Advocacy Network a call (note our new number: +64 – 022 386 2287) and come and see us for your free initial consultation. We can give you advice and support to decide on your course of action to ensure your protection.

There is far more to this case than was ever noted in the determination. The personal sacrifices and victimisation from other parties was truly horrendous while the 8 months of this battle waged on. From Legal Aid providers refusing to help, to Housing New Zealand evicting her, Kelly fought through everything with dignity and pride, despite the fear and grief. Kelly is a hero among victims for what she has accomplished with this case, we can only hope those to come don't need to go through what she did to find justice.

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"Procedurally and substantively" - Disciplinary Action and Dismissal

Two recent cases upheld in the ERA have been identified as being the result of what we would call 'procedural or substantive unfairness'. They highlight the need for employees to be aware of the policies under which they are working, as well as the contents of their employment agreements.

In the first case, Roihana Nuri was accused of faking illness to get time off work and was subsequently dismissed from his job. The ERA finding was that the employer had failed to follow its own policies by not producing a written report and not formally giving Mr Nuri an opportunity to comment on the preliminary view. Whether or not Mr. Nuri was guilty of having done what he was accused of, the employer must follow specific guidelines in dealing with the matter. Their failure to do so resulted in a success for Mr. Nuri at an ERA hearing.

In the second case, Karl Browne was indefinitely suspended before being asked to resign after a drugs investigation by the employer, which the ERA found to be "extremely unfair", and amounted to a 'David and Goliath' situation. Despite no drugs or drug paraphernalia being found, Mr Browne and other colleagues were interviewed and Mr Browne was indefinitely suspended before being asked to resign. The employer believed it had the right to sack Mr Browne because it believed he had used drugs or had drugs in the workplace. The ERA on the other hand was satisfied that there was no actual evidence of this.

Employers must deal with their employees in 'good faith', and they must have a 'good reason' and follow a 'fair process' prior to taking disciplinary action, or making a decision to end someone’s employment.

In order for the employer to have ‘good reason’ for the dismissal or disciplinary action, it must:

• have a genuine work-related reason for the dismissal or disciplinary action, and
• genuinely and reasonably believe that dismissal or disciplinary action is necessary or appropriate.

An employer’s reasons for dismissal or disciplinary action must be reasonable to an independent and ‘reasonable’ observer. For example, it would not be reasonable to dismiss an employee instantly for a one-off instance of minor or trivial misconduct. However, if the employee has had sufficient warning and persists with the same or similar misconduct, then, after a fair process, dismissal may be reasonable.

If the problem goes to the Employment Relations Authority or the Employment Court, they will look at whether the employer was being fair and reasonable in the disciplinary or dismissal action. In particular they will consider whether:

• the employer investigated sufficiently, taking into account the resources of the employer to do that
• the employer raised their concerns with the employee before taking the disciplinary action or dismissing the employee
• the employer gave the employee reasonable opportunity to respond
• the employer genuinely considered the employee’s explanations.

Some employment agreements or policies specify the types of situation that might result in disciplinary action or dismissal, or the process the employer and employee must follow. In most of the cases we have handled recently, investigations indicate that the treatment of the employee is both procedurally and substantively unfair. That means the employer has either not followed their own policies, or they have been unfair in the interpretation or implementation of them.

Employees need to understand how important it is to have an independant person watching over both disciplinary and dismissal matters, to ensure that their right to fairness is upheld.

If you're facing disciplinary action, especially if it may result in dismissal, contact us to come with you and investigate it independently. It could save you a lot of trauma later!

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Conflict: Resolution vs. Winning

The difference between conflict 'resolution' and 'winning' is a mindset. It's all about how you think, and what you want. But here are some ideas:

A person can win a conflict through sheer stubbornness and determination - simply by breaking the other side down by force. Whether they are right or wrong is often irrelevant, it becomes about 'winning'. The winner is for the most part extremely confrontational, and the battle comes at a high price for all parties.

Resolution, on the other hand, is about finding ways to solve the problems we face without doing irreparable harm to the working relationship, business, or person. Resolution is cost-effective, friendly, and leads to finding out new things about yourself or developing new skills in communication. It can lead to your boss seeing you in a whole new light, and may offer opportunites for promotion when he's looking for that new 'people person' for the manager's job!

Tauranga Advocacy Network will always prefer a resolution mindset over conflict - however it's not always easy. In many cases, it starts out friendly enough, then bosses turn sour when asked to provide fairly for the employee's needs. In cases like these, we have a need to suddenly take the 'rottweiler' approach, and we will never hesitate or back down from doing so.

As an employee though, you should probably be aware at the outset that conflict is time-consuming, frustrating, and expensive.

How do you think your boss will react? Is there anything you can do that will make it a more pleasant discussion? These are the questions you should ask yourself at the earliest convenience when you're thinking of taking your employment problems to the table.

Get some advice FREE with a no-obligation consultation from the Tauranga Advocacy Network.

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Effective Communication in the Workplace

"The single biggest problem in communication is the illusion that it has taken place." - George Bernard Shaw

This quote pretty much sums up the root cause of all conflicts in the workplace. Often it is seen that managers do not realize the importance of communication in the workplace and thus do not convey their ideas, organizational goals, employee duties, etc., very clearly. When the seniors in the organization are unable to create an organizational environment which promotes open and clear communication, it can have negative repercussions on the work culture and the employee productivity. An organization where there is lack of effective and open communication, workplace issues such as high employee turnover and wastage of organizational resources, often arise. To avoid these, clear-cut and precise workplace communication is a must for any organization.

Open communication, whether between the employees or between the employees and managers or between the management and all employees, leads to formation of better personal and professional relationships. If they frequently interact and communicate with each other over professional and personal issues, the employees feel cared for and this in turn creates better working relationships.

Open communication in the workplace can save many workplace conflicts. For example, if two employees have a disagreement over some issue, and instead of resolving it and arriving at a solution, they end up taking the whole thing personally and if it continues for a very long period, it may lead to a work related crisis where in they might even refuse to talk or work together in the future. Such communication issues in the workplace can be nipped in the bud if the managers act as a mediator and let the two warring employees put across their thoughts and opinions to each other through open and clear communication. Thus, if the communication between various people in the organization is good, it will lead to successful conflict management in the workplace and employees will be able to understand each others' point of view much more clearly.

Consider your communication skills next time you feel you are spiralling towards a conflict with one of your co-workers, or a supervisor. Here are some tips/tools for improving communication in the workplace:

The most successful tools to use are those which allow face-to-face communication skills in the workplace to be actually seen (e.g. video-conferencing/video-messaging). These ensure that any non-verbal cues and facial expressions can be read along with audio/text.

• Skype: Provides voice and video calls as well as text messages and instant messaging facilities. Leads to informal communication for the simple things, leaving emails for more in-depth communication.

• Instant messengers: There are several applications to pick from (Google Chat, MSN Messenger, etc.) which allow you to have a synchronous conversation with team colleagues, just so long as they are online at the same time.

• Yammer: Useful in connecting with other people from across the globe, city, or just within the building. Can be used for finding contacts, support, organisational management structure, and it also acts as the occasional water cooler for company employees. Often referred to as the Office Facebook.

However you want to improve productivity through better communication in the workplace, remember to make sure your employer is OK with it first! Some employers think that desktop applications (apps) are non-productive, and may well be very hesitant to implement them. research however, would suggest otherwise. Take the research to your boss before you download that IM!

For more advice on workplace communication tools contact the Tauranga Advocacy Network.

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Bullying In Schools – Realistic Expectations

With all the media attention being given to the issue of schoolyard bullying since the video release of the self-defence of Casey Heynes, it has become more important than ever to take appropriate measures to find an acceptable and realistic solution for the victims.

Without a doubt, the protection of the victim has to be the primary objective; the fate and punishment of the perpetrator(s) quite rightly should be of secondary concern – although it still cannot be overlooked or minimised. It's really important to get the total solution right the first time, or it just makes life harder for the victim.

There are comprehensive laws in place that help us to determine what course of action should be taken in the face of such events, and it's time to put this softly-softly PC approach firmly behind us and use them. Attitudes like those of Family Therapist Diane Levy who thinks children should make statements like "Stop it, I don't like it” are not only ridiculously naive, but highly antagonistic to chronic schoolyard bullies, and could well lead to much more serious bullying, and for prolonged periods of time. 

Any teenager making such a statement while being bullied is probably going to be beaten more often just for the fun of it – it really highlights the naivety of the people who are forming public responses to these sorts of things.

Rather than expect the victim to respond to the bully themselves to solve the problem, schools are bound by a statutory duty to provide a safe, 'bullying-free' learning environment, according to the Ministry of Education. A school permitting bullying to occur due to the inaction of teachers, with students suffering harm, could be in breach of a duty and face prosecution under the Health and Safety Act 1992. It is also arguable that bullying is a hazard-causing harm, and by not taking practicable steps to prevent student bullying, the school could potentially be prosecuted. 

I believe schools should be responding in a manner that is fair and reasonable, as they are obligated to do under current Health and Safety legislation. The response to schoolyard bullying is the same as that to workplace bullying: as soon as a complaint is received, a full and fair investigation needs to be initiated, and the complainant (and their parents) kept informed of the process and the outcome. The school needs to take immediate action to protect the complainant during the investigatory process (including isolating, minimizing, and/or eliminating the harm by suspending the bully temporarily from school if necessary), and the alleged bully should be fully informed of the investigation, the process, and the likelihood that they face expulsion if it is determined that bullying has occurred. With expulsion as the common consequence, and provided it is enforced every time without exceptions, more parents will be prepared to take steps themselves to ensure that their children don't step over the line into bullying – it's a nasty social stigma to carry when your kid has been kicked to the curb by the local school.

So what do you do if the school won't take action?

Simple – they have breached their duty of care to the student, and they can be prosecuted under Health and Safety Act 1992 legislation. Find an advocate or lawyer with the guts to take it on, and prove your point! And don't forget, any harm that the complainant has suffered as a result of the breach of duty of care can be the basis of a compensatory claim. Such injuries may include damages, humiliation, and exemplary damages for mental harm if a diagnosable medical condition results.

It's time to put the responsibility squarely where it belongs – on the school to provide a safe place where young people can learn without being in constant fear, and where teachers can work without fear of being manipulated or bullied by the students. And if that fails, students can still dispense with responses like "Stop it, I don't like it”, and go the way of Casey Heynes. No one would blame the victim, and you have ‘self-defence' on your side if it goes bad for the bully and they try to say it was you who beat them.

New Zealand's laws covering self defence are clear, longstanding and shared by most other common law jurisdiction countries. Section 48 of the Crimes Act 1961 sets out the defence: 'Everyone is justified in using, in defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use'. The force allowed by the law, however, must not be disproportionate or excessive to the threat faced.

Here are some tips for teenagers being bullied:

Keep a diary of the bullying – secretly list the time and day, where it happened, who saw it, who the bully was, and if they had others helping them. If someone tells you they are prepared to back you up when you report it, write down their name as a potential non-hostile witness.

Write a letter to your principal – outline the fact that you feel that you are being bullied, give a few details to prove it (you don't need to tell them everything, you just need to show them that it's happening), and tell them you want them to do something about it under Health and Safety legislation. If you want to be moved to another class, tell them. If you want the bully removed from class, tell them. Also tell them you are prepared to meet for mediation, but only with the school in the first instance, not the bully. Don't go into a meeting with the principal on your own – take a parent or support person as a witness. The school is legally obligated to respond appropriately to this letter, and if they don't you have the option of taking it further.

Record abuses of yourself and others, and show it to teachers. Most cellphones have voice recorders, use them to record your bully shouting or swearing at you. If one of your friends has a cellphone that takes video, have them record the bullying and send you the video clip to use as evidence later if necessary.

Don't think you can do it by yourself?

If you think you can't take it on, you always have the option of having your parents or an advocate be your voice with the school. Advocates present on your behalf so you don't have to do it alone. You'll still have to be there, but it takes a lot of the pressure off you.

No one should have to tolerate this sort of behaviour, in school or anywhere else. It's time to put a stop to it before it gets any further out of control.
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Rachel is part of a network of people who work together to strategise on behalf of clients who believe they have been victimised. She can be contacted by email at tgaadvocacy@gmail.com

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