by Marissa Bidois

Workplace harassment and bullying does occur but clearly it is unacceptable behaviour under any circumstances. As a responsible employer you should be clearly communicating this to all employees, contractors and visitors to your business as not only do you, as an employer, have a moral obligation to protect your employees from harassment, New Zealand law also requires it. Employers are obliged to create a safe and secure working environment for their employees, and take all reasonable practicable steps to manage hazards and avoid exposing employees to unnecessary risk of physical injury or psychological harm. So left unchecked an employer may be breaching both the Health and Safety in Employment Act and the Employment Relations Act – resulting in action under both Acts – and potentially the Human Rights Act. And if harassment and bullying is occurring it will be affecting your business negatively in a number of ways: staff morale, creativity and productivity, quality of work, increasing absenteeism, the business’ reputation, and creating an unhealthy workplace culture.

Implementing an anti-harassment policy

If a case of bullying or harassment is raised an employer will be somewhat protected if they can show that reasonably practicable steps have been taken to prevent harassment (or unlawful discrimination). Employers should first define what harassment and bullying means to your workplace and have a written policy statement advising employees that any form of harassment is illegal and will not be tolerated or condoned. The policy should set out an employee’s right to work in a healthy and safe work environment free from harassment, give examples of what constitutes bullying and harassment, outline the steps for resolution of the complaint and should point out that appropriate sanctions will be taken against anyone who offends. The harassment policy and its associated procedures should be communicated to all employees and be widely known within the enterprise. Policy and procedures should also be included in training and induction programmes for new staff. Don’t wait for a complaint to occur before taking action to eradicate inappropriate conduct. Monitor staff behaviour, or changes in behaviour, as this may tell you whether harassment or bullying is occurring. These could include changes in morale, mood, personality, avoidance of particular individuals, patterns of absenteeism, significant drops in performance, isolating from others. Be prepared to follow up or investigate further where necessary.

What action should be taken if a complaint is made?

Employers need to take any employee complaints over colleagues bullying behaviour seriously and immediately address the complaint. Depending on the issue you may need to use an external mediator or contact the police. However, be aware that an external police investigation cannot replace an internal disciplinary investigation. Bear in mind that any investigation surrounding a complaint undertaken by an employer must rely on procedural fairness. Procedural fairness (essentially the application of the concept of natural justice to the way in which a complaint is dealt with) is a major factor both in respect to the person making the complaint and to the alleged offender. If it cannot be shown that the investigation carried out was fair, a personal grievance claim may follow, even if it is determined that the particular offence was committed.

Procedural fairness in dealing with cases of alleged harassment:

• •Both parties must have a reasonable opportunity to be heard, to answer allegations, and to challenge any defence put forward;
• •The person who deals with the complaint or grievance (which will include hearing any explanations or other evidence), is someone independent of the parties and able to act impartially in carrying out inquiries of this sort;
• •An initial inquiry is held as soon as possible after a complaint is reported;
• •Any witness statements are put to both parties;
• •Documentary evidence or records of allegations, defences and denials are retained and the parties given the opportunity to correct the record. Corrections required should be signed, and any witness statements also recorded;
• •Where accounts vary, the person carrying out the initial inquiry should record, giving reasons, a preference for one version of an event over another.

In addition once an outcome has been reached (and assuming both parties have continued employment in the workplace) it is important to continue to monitor the situation to ensure the inappropriate behaviour has stopped permanently.

Bullying is bad for business and an employer’s assertive action in setting a clear workplace policy and resolution process will be of benefit to all: employees, employers and business.

The Restaurant Association has a sample anti-harassment policy and this is available from the Association’s website, www.restaurantnz.co.nz