Workplace bullying must be reported to a boss

OPINION: The Employment Relations Authority has recently provided a useful decision on a topic I get a lot of inquiries about: workplace bullying, writes Mary-Jane Thomas in this week's Work to Rule.

This is very stressful to employees (who are being bullied or said to be the bully) as well as the employer, who is trying to sort the whole thing out.

J worked as an air traffic controller. He told his doctor that he felt mentally unwell. The doctor diagnosed anxiety stress disorder and because of this his medical certificate clearing him for his work as an air traffic controller was revoked. He couldn't work in that field until he recovered and got a full clearance.

He didn't get better and was eventually dismissed two years later on medical grounds because he couldn't get the required medical clearance to work in air traffic control.

During the two years when he was off sick, the employer had received medical reports from two doctors. Neither recognised J's stressors as being work-related and he did not report work stressors as being the cause of his medical problems to his employer during this time.

What he did do, however, was to make a complaint to the Labour Department, after being off work for a year and while still employed, that he had been bullied at work. This was the first time the employer became aware of the allegation. J took a personal grievance to the authority, which rejected J's claim.

The major point in all this was that the employer knew only that J was unwell, not that his unwellness was supposedly caused by alleged failures on its part to deal with a workplace bullying issue.

The authority made the very useful comment based upon quite clear legislative requirements. "The steps an employer must take under the Health and Safety in Employment Act to keep staff safe are only those which are reasonably practicable and will depend on the particular circumstances of the role and the industry in which it is performed. Furthermore, and critically for our purposes, [employers] are only required to take steps in respect to matters they know about or ought reasonably to know about."

Employers cannot ignore clear-cut cases of workplace bullying or even ignore suspicions of such activity. If the authority or the (Employment) Court think that the employer should have known and should have taken action, then the employer will be liable.

However, employers are not omnipresent, nor are they mind readers, and employees must let their manager/supervisor know about the behaviour (and keep a record about what they told the boss and when).

The obligation is then upon the employer to investigate. Then, if nothing is done or it is not done properly, the employee has a grievance.

Employers – once someone reports workplace bullying, make sure you get some outside help. Gone are the days when you can sit everyone around a table and tell them to "pull their heads in" – although I admit that's often exactly what people need to be told!

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to Mary-Jane.Thomas@prlaw.co.nz.

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