After Haumaha and Maxwell, can bullying laws be fixed?
With workplace bullying and harassment under the microscope, the Government is preparing to modernise our laws on the issue - but what, if anything, should we change? Sam Sachdeva reports.
Whether at Parliament, a high-powered law firm or your own office, workplace bullying appears to be on the rise.
A number of high-profile bullying allegations, and subsequent public investigations, has put the issue in the spotlight for many Kiwis.
Employment law specialist Susan Hornsby-Geluk attributes the rise in bullying complaints not to a new wave of intolerable bosses, but increased awareness amongst employees of their rights and what is - or isn’t - appropriate.
“In the past there might have been a significant reluctance to actually raise the flag and come forward, but because of #MeToo and other social changes ... I think employees are more willing to put their hands up.”
Workplace Relations and Safety Minister Iain Lees-Galloway also credits changing societal expectations for the rise in concerns, and is clear that acceptance and tolerance of bullying can remain no longer.
While there is no definition of workplace bullying enshrined in legislation, Worksafe NZ’s guidelines for businesses describe it as “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”.
In its report on bullying allegations made against Deputy Police Commissioner Wally Haumaha, the Independent Police Conduct Authority ruled his behaviour did not meet Worksafe’s definition - despite concluding that his conduct “in many respects fit with common usage of the term ‘bullying’ that is often used to describe intimidating or unreasonable conduct in a number of contexts (such as bullying in the playground)”.
Bullying allegations levelled against Retirement Commissioner Diane Maxwell by former staff were also dismissed as failing to meet the appropriate threshold, despite the State Services Commission report acknowledging that five staff who resigned in the year before the inquiry raised Maxwell’s workplace conduct as a “material cause of their resignation”.
So who is out of sync - the public, or the officials who set the guidelines?
A high bar, in the right place
Hornsby-Geluk says the bar is high but in the right place, with a careful balance needed between encouraging employees to report any concerns and ensuring alleged offenders are treated fairly.
“If claims of bullying are made against other employees or managers, then that mud sticks, whether or not the bullying is substantiated.”
The term “bullying” is often used too liberally, she says, while workplace conduct can still warrant discipline or dismissal even if it doesn’t meet that strict definition.
Lees-Galloway agrees the current Worksafe definition seems fit for purpose, while there is a broader legal requirement to provide a safe workplace that goes beyond any bullying threshold.
That does not mean we will not see changes, however.
New Zealand’s workplace health and safety settings are set to go under the microscope, with Lees-Galloway saying the current policies are “very much focused on acute physical risk” and reducing workplace deaths, rather than addressing less visible scars.
The Government will look at those issues through two major pieces of work next year: the first, a review of the Health and Safety at Work Act from 2015, and the second, an assessment of how to improve the dispute resolution process in New Zealand.
“I absolutely anticipate that questions of bullying, mental health, harassment will all come up during that and we can have a look at whether there’s an opportunity to improve our legislative framework but also an opportunity to improve the guidelines and support that is provided to employers as well,” Lees-Galloway says.
Australia’s model workplace safety legislation - upon which New Zealand’s law is based - was reviewed last year, and the minister suggests the Government’s plans will be informed in part by our neighbour’s conclusions.
The Australian review identified psychological health in the workplace as a priority issue, and recommended new regulations to address the related risks and how to manage them, as well as a new notification “trigger” for psychological injuries.
Lees-Galloway says the Government is yet to determine the scope of each review, and doesn’t expect to receive the results until late 2020. For now, he has asked MBIE officials for some “initial advice” on bullying and harassment, with smaller changes that could be made while the larger work is done.
But Hornsby-Geluk says that rather than resolving disputes after the fact, the Government should focus on developing early intervention tools to nip any problems in the bud before they spiral out of control.
“In any bullying investigation you generally get a winner and a loser: somebody makes an allegation and it’s either substantiated or it’s not, and unfortunately that often means that regardless of the outcome employment relationships break down, so I think the work needs to be put into working out how to resolve workplace bullying disputes at an earlier stage.”
She would also like Worksafe’s definition of bullying to be included in relevant workplace laws, reducing the inconsistencies that currently exist between individual companies.
But while it may be tempting to think that a black-and-white definition of bullying will solve everything, Hornsby-Geluk says the complex stack of employment case law which has built up in New Zealand shows it isn’t that easy.
“It’s really hard to define bullying in a way that captures all of the different scenarios that can happen in a workplace ... no one case is quite the same, and applying just one definition to a situation is quite difficult and won’t necessarily produce an outcome that says that particular behaviour does constitute bullying.”