The bullied employee was subjected to taunts, name calling and criticism and had fish sauce poured over her clothes and hair before she ended her life.
The Court described the bullying as “persistent and vicious” and took the café to task over allowing it to continue.
This case raises the question of whether similar action would succeed in New Zealand. The short answer is, yes, potentially it could.
The Health and Safety in Employment Act 1992 (“HSE”) provides that an employer must take all “reasonable and practicable” steps to ensure that the workplace is healthy and safe for its employees, including by eliminating or minimising hazards and under this legislation, employees also have obligations.
The definition of “hazard” in the HSE was amended in 2003, to include “a situation where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person”.
There have been two Employment Relations Authority cases of note where an employee has successfully claimed constructive dismissal as a result of the employers failure to take action regarding complaints over another employee’s bullying behaviour, but to date, no prosecution under the HSE for the same.
Those cases are O'Brien v Renton Chainsaws & Mowers Ltd (Unreported, 27/2/03, CA21/03) and Harbord v Waste Management Ltd (Unreported, 23/2/05, WA30/05). In O’Brien, the employee claimed that a coworker made it impossible to carry out his work tasks and had been violent and abusive towards him and spent considerable amount of time using computer for personal purposes and looking at pornographic images.
In Harbord, the employee claimed that a coworker with gang connections had threatened him, including threatening to kill him.
In each case, the employees claimed that they told the employer and the employer did not take appropriate action to protect the employees.
In each case, the Authority held that, by failing to act immediately in response to a complaint about personal harassment and personal violence from another employee, the employer unnecessarily subjected the employee to an unhealthy and unsafe working environment, and the employee had been constructively dismissed.
In our view…
Employers need to take action to address employee complaints over their colleagues bullying behaviour, in order to manage the risk not only of successful personal grievance action but of prosecution for failure to manage this workplace hazard.
Workplace bullying should be addressed and should not be tolerated – this can be a difficult and subversive issue to address and we recommend seeking advice in such situations so that a strategic approach to investigation and management can be taken.
Kate Ashcroft is passionate about employment law and has advised employers across a range of industries, with clients ranging from small and mid range businesses to large and multi-national corporates. Kate has also worked in corporate human resources with a public sector employer in Australia and is a member of the Human Resources Institute of New Zealand. Kate prides herself in providing pragmatic legal solutions to meet client’s legal, employment and business needs and can assist with all employment related queries. Kate can be contacted by email: kate.ashcroft@heskethhenry.co.nz.
| 
