Most people will have been either accused of being a bully, have been bullied or almost certainly know people who have struggled with bullying situations. It is an area that New Zealand is still grappling with. Both employers and employees can be uncertain how to navigate this problem.
A recent South Island decision from the Employment Relations Authority highlights common mistakes and gives guidance in this area.
The case comes from Dunedin and involved a woman who worked for a recruitment company. I will call her the grievant. She worked as a candidate consultant and an HR analyst. She was apprehensive of taking up the role because of how her potential manager appeared to have treated her predecessor. To her credit, she raised this with the manager. The manager’s response was that good communication was the key to the future.
Life went along reasonably until a year or two later when the section she and her manager worked in put through low billing. What followed will sound familiar to many.
The grievant became increasingly concerned about bullying by her manager. She did the right thing and raised her concerns with more senior managers. While the company was aware of the situation, the company claimed that she asked for no further action at that stage. They said her complaint was informal rather than formal. They took no further action.
This was the company’s first mistake. Once an employer is told of a bullying situation they cannot do nothing. While a formal investigation is not necessary in all circumstances, employers can begin taking small steps to manage the situation.
Clear directions should be given to the alleged bully, while taking care not to predetermine the truth of the allegations. The complainant should be told what has been done and what they can expect in the future. It would also be wise for employers to begin documenting what steps they are taking, and to check in periodically with the complainant.
The difficulties continued. A theme emerged of her being criticised by her manager for not performing.
Two things occurred which may well ring bells for some. Firstly, the grievant overheard a conversation between two managers that sounded critical of her failing to engage with work.
Secondly, she found an email which had been left on the printer which she described as systematic character assassination of her. Totally unsatisfactory and careless behaviour.
Within days the grievant raised a personal grievance and then the company commissioned an independent investigation through the company’s HR team. The company also suggested that the grievant work from home in the meantime to avoid interaction with her manager.
The grievant agreed with this suggestion. That was a good decision by the company, however it is worth considering whether earlier intervention could have avoided this situation entirely.
The investigation found that the grievant had been bullied by the manager and that the relationship between the grievant and the manager was irreparable. The company on the other hand decided it could work with both the grievant and her manager and proposed she should return to her role with the same manager.
The company also proposed for a series of meetings to take place to discuss the issues, particularly in the first week back. It was also planned that after the first week a more senior manager would provide ongoing support.
The company said they had no other suitable role for the woman anyway. The company expressed the hope that the manager and grievant would draw a line in the sand and move on.
This proposal was a serious mistake. Any proposed return to work is a critical decision which needs to be considered carefully. Care needs to be taken ensure that the grievant is protected from the bully.
The grievant said that the proposal was unacceptable because she could not work with the manager, but she suggested mediation instead. Unfortunately, the company would not attend unless proceedings were first filed.
It is hard to see how the company’s decision here could have helped things. Mediation is an opportunity for parties to freely and frankly discuss matters in a confidential setting. What is said at mediation cannot be considered in the Employment Relations Authority or court, so both parties are safe to talk about what is really going on and make a plan for the future.
The company’s response was to place the grievant on leave without pay and asked her that she return all company property to the office. This was another mistake and rather a fatal one. The grievant took the view that the company’s unilateral action was a dismissal and she raised a second personal grievance accordingly. The employer said the grievant was not dismissed because the job was there for her to turn up to. She was refusing to go to work.
The Authority decided she was unjustifiably constructively dismissed. There was a breach of a fundamental obligation on the employer’s part not to do anything that is likely to destroy or seriously damage the relationship of trust and confidence so important in any employment relationship.
The grievant asked for $20,000 from the Employment Relations Authority for humiliation and distress and was awarded all of this. She asked for all of the remuneration she had lost because of her dismissal as well and was given only the three months lost remuneration which is the starting point for such a calculation. The grievant no doubt also recovered some of her costs.
This is a good case because it illustrates so many of the employment problems I have seen arise associated with bullying in the workplace and poor follow-up decisions. The case is one of an employer who to some extent tried to do the right thing but never quite got there. Unfortunately this happens all too often.