Complaints, investigations and the ERA: How to deal with workplace bullying

Thousands of people experience bullying in the workplace every year in New Zealand.
Thousands of people experience bullying in the workplace every year in New Zealand. Photo credit: Getty

Workplace bullying is a significant issue in New Zealand with some reports finding as many as one-in-three Kiwi employees have come up against it. 

This is the second-highest rate of any developed country and it is believed to contribute to mental health problems for many Kiwis.

But the process for managing workplace bullying is often fraught with issues as many people leave the company rather than lodging complaints, or because they are mishandled.

Here's an overview of how a complaint should be lodged and handled, and what to do if it isn't.

Identifying bullying:

Retired Auckland University law fellow William Hodge says it is important to understand the difference between performance review and bullying.

"Forgetfulness, rudeness and tactlessness, that's not bullying," Hodge says. 

"Setting high-performance standards is not bullying. Constructive feedback, legitimate advice, peer review, that's not bullying. Requiring reasonable written and verbal work instructions to be carried out, that's not bullying."

WorkSafe NZ defines workplace bullying as "repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm".

Workplace bullying can occur as personal or task-related attacks, and can be delivered physically, verbally or socially including:

  • belittling remarks
  • undermining integrity
  • sense of judgment questioned
  • opinions marginalised
  • giving unachievable tasks
  • impossible deadlines
  • unmanageable workloads
  • 'setting up to fail'
  • ignoring
  • belittling a person’s ability
  • attacking a person’s beliefs, attitude, lifestyle or appearance
  • taking credit for work that’s not their own
  • threats of violence.

Hodge says bullying can come from a co-worker, managers, the company, clients, or even lower-ranked workers.

"I've had a case where a manager was being bullied by several people below her who had applied for the same job and didn't get it so they were angry that she got it and they were making her life miserable."

Compiling a complaint:

Bullying advocacy organisations recommend documenting all bullying and gathering evidence.

When bullying occurs, record the date, time, method (email, phone conversation), who was involved and witnesses.

"A complaint by itself isn't very helpful unless you've got some facts to back it up," Hodge says. 

"If I'm acting for the employee I would tell them 'what meeting was that?', 'what email was that?', 'what conversation was that?' And the more you've got chapter and verse… then the stronger your case is."

Lodging a complaint:

Most medium-large New Zealand businesses have policies and processes in place for dealing with workplace bullying, Hodge says.

These can normally be found on a company portal or through the HR department and provide a clear structure for dealing with the complaint and standards to ensure a fair and equitable process.

"Every employer which is big enough to have an HR department will almost automatically cover bullying and harassment. It's pretty much standard," Hodge says.

"Smaller employers, the mum and pop cafe or a repair shop or garage probably won't have all the policies that the medium to big employers will have."

Bullying complaints are handled by a manager or HR employee, unless the policy says otherwise.

There are two main methods of complaints: informal or formal.

Informal involves a conversation about the allegations with the manager or HR person about what has happened and whether it can be resolved without undertaking an investigation.

Formal complaints are made in writing and require an investigation into the allegations.

It must include who the complaint is made against, what happened (and evidence), and an outcome of what the victim is seeking.

The investigation:

After a bullying complaint is lodged, the employer must make sure it is properly investigated.

"Either the complainant employee or the employee being complained about could bring actions against you (or even both) if the complaint isn’t investigated properly," Employment NZ says.

The investigation will be assigned to someone, who could be an employee or a neutral third party, who will talk to all parties involved and review the evidence.

Hodge says businesses must "walk a tightrope" when investigating to ensure fairness between the complainant and the other parties.

"They've got a grievance on the left, they've got a grievance on the right, and they [the employer] is right in the middle and they have to walk a fair line to treat everyone fairly."

WorkSafe's principles for workplace bullying investigations are:

  1. Treat all matters seriously
  2. Act promptly
  3. Ensure non-victimisation 
  4. Support all parties
  5. Be neutral
  6. Communicate the process and outcomes
  7. Maintain privacy (confidentiality)
  8. Keep good documentation

The results:

If the allegations of bullying couldn't be proven after the investigation, despite whether it did occur or not, the employer should identify ways to return to a constructive working relationship, WorkSafe NZ says. 

This could include counselling for the person who complained.

"If the complaint is upheld the employer must decide how to address the bullying, make the bully accountable and protect the complainant from further bullying."

Some options are to:

- ask the bully to apologise and agree to change their behaviour 

- give a formal warning or take other disciplinary action

Hodge says many complainants say they just want the outcome to be the perpetrator stopping the bullying.

What happens if my complaint is not handled well?

"If the employer fails to address those concerns in a fair and reasonable manner, then the employee is able to raise a personal grievance against the employer," says employment lawyer and law firm director Jennifer Mills.

The two most common claims Mills says she deals with are:

  • If the employee is still employed, they may claim that their employment has been disadvantaged by the employer’s unjustified actions or omissions.
  • If the employee had to resign due to continuing bullying, the employee may claim that they have been constructively and unjustifiably dismissed by the employer.

The employee and the company will attend mediation where they may negotiate and resolve the issue.

If a settlement between the parties is not reached, they may then proceed to a hearing where an outcome is determined by the Employment Relations Authority (ERA). 

Mills says keeping evidence throughout the bullying is extremely helpful during this process.

"At the time of hearing, the actions and events in question may have occurred some time ago. For this reason, it is generally important to have written records and documentation to support any claims and defences."

Problems with the complaint system:

According to a 2019 Hays survey, reporting the bad behaviour of co-workers to the boss or HR has an almost 50-50 chance of resolving the issue, the NZ Herald reported.

Of those bullied or harassed at work, 15 percent leave the job without making a complaint. 

Law fellow Hodge says it's often the small businesses which struggle to handle complaints as they don't have policies and procedures in place for managing them.

"Smaller employers frequently run foul of expectations of either WorkSafe or the Employment Relations Authority who have such standards which bigger employers who will almost automatically have," he says.

Mills also notes the process of mediation as part of the ERA process has problems.

"There is an ongoing debate on whether mediation is an appropriate process for resolving certain types of bullying matters," she says.

"There is a concern that if there is a severe imbalance of power between the mediation participants, the mediation process could reinforce the uneven dynamic, and this may unfairly influence the outcome (if any) of the mediation."

For further information look to WorkSafe's Preventing and responding to bullying at work.