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.

Everyone will be familiar with the denial that you are developing a cold. Maybe your nose is just a little runny, or there is a slight tickle in your throat. We can convince ourselves that maybe if we just ignore it and persevere with our work, we can avoid the dreaded lurgy. It means our pay will continue, especially if we have used up our sick leave. Of course, illness pays no care to our work schedules, and a full-blown cold often develops.

Pre-2020 this was a common and mostly benign occurrence. While our colleagues may have been just a little irritated we risked passing our germs to them, little more would come of our decision.

But in this Covid-19 world, this same decision can have significant implications.

Take for example, Sebastien Klem. Klem said he had a light cough and no other symptoms, but, as a conscientious citizen, decided to take a test for coronavirus. Less conscientiously, after getting his test done, he then went to work.

He later tested positive for Covid-19 and was placed into quarantine for two weeks. His employer was unimpressed. In a letter to Klem, they said “he was totally irresponsible” and had violated his obligations towards safety. He was dismissed for serious misconduct.

Klem’s co-workers gave written statements that Klem was much worse than he made out. They said Klem told them he had a fever. One colleague said he was “pale and had red eyes and the heavy cough”.

His employer further claimed Klem ignored an earlier letter they sent to staff suggesting that they should stay home if they had the “slightest symptom”. They also said that given the seriousness of what occurred “there was no other possible punishment”.

Fortunately, none of Klem’s colleagues went on to develop Covid-19. Klem believes he would not have been dismissed had he not been tested for Covid-19, and is challenging his employer’s decision – in the industrial tribunal of France.

Although Klem’s case happened overseas I do not think the result would be any different in New Zealand.

But is this decision fair, and will such policies achieve safer workplaces?

Klem’s decision was one a lot of us could easily have made prior to Covid-19. It is a scary prospect to consider we might have Covid-19, and it is a very human thing to choose to put your head in the sand and hope the problem will go away, or is harmless. New Zealand has its own example of this.

Readers will recall the media attention in August this year when a maintenance worker attended work for two days with a cough at the Rydges Hotel. He put his symptoms down to a pre-existing health condition. He had passed his health checks on both days (such as temperature checks), however his case was not picked up until mandatory testing of staff was introduced.

So how do we manage human nature while these risks are ongoing? The words of Dr Ashley Bloomfield are salient, “the virus is the problem, not people … people are the solution”. On a nationwide scale, the approach to enforcing Covid-19 has been one of compassion. In the case of the Mount Roskill Evangelical Fellowship, it continued to hold church services during the recent level 3 lockdown in Auckland.

Despite that, authorities handled the situation by taking an educative approach. To date, it does not appear that any person has been charged for those events. The sub-cluster now appears to be contained and Auckland has moved to level 1. We will never know whether compliance with Ministry directions would have been better achieved had a more punitive approach been taken.

Whether employers could be expected to be similarly compassionate is another story, however.

A zero-tolerance approach could well encourage people to get tested and stay home. However, if any employee has minor symptoms, it may discourage them from getting tested at all and instead encourage them to hide their symptoms on the assumption they do not have the virus.

If Covid-19 did spread, it would potentially be difficult to establish which employee brought it to the workplace, especially if their symptoms were mild and had gone unnoticed by others. For this reason, care should be taken should employers choose to take the same punitive approach here. Such a policy could serve to discourage open communication which could serve to only heighten risks.

Practical considerations aside, to what extent can New Zealand employers adopt a zero-tolerance approach?

The answer (as with many matters in employment law) is it depends. To justify a dismissal for serious misconduct, the employer must show conduct which seriously and irreparably damaged the relationship of trust and confidence. Failure to follow lawful and reasonable directions can amount to this.

Health advice is that if you have any symptoms of coronavirus you should be tested. If you are tested for coronavirus you may be directed to self-isolate by medical professionals until you get the test results. The Ministry of Health says you should always stay home if you are unwell. Many employers will have issued policies and directions confirming this is their expectation

Furthermore, workers have good faith obligations with their employer which means you must be responsive and communicative with your employer. You must not do anything that is likely to mislead or deceive your employer. In other words, workers arguably have to be frank about their health and their tests.

Failure to follow these directions may well lead an employer to decide they have lost trust and confidence in the employee – especially where the decision was wilful and deliberate. However, where an employee had honest reasons for not following the health direction, like in the case of the maintenance worker at Rydges hotel, this could be difficult to establish.

Ultimately, any employee who does attend work with Covid symptoms, and having taken the test, risks an unsympathetic response from their employer. This is even more likely if that test were returned positive.

If you are unwell, get a test, let your employer know, and stay home until you know you are safe. It is in everybody’s interests – we do not know when the next community transmission will occur.

Requests for personal information covered by the Privacy Act are commonplace in employment disputes.

The updated Privacy Act is coming into force on 1 December 2020. Now is the time to consider the changes and think about how it may affect you and the work you do.

The amendments introduce a number of changes. Some of the key changes to bear in mind are:

Mandatory reporting of privacy breaches

Currently when there is a privacy breach, whether an agency (an employer is an agency) reports it to the Privacy Commissioner or the affected individuals is voluntary. The Act imposes mandatory reporting of breaches but only where the breach causes or risks causing serious harm. Failure to report such a breach would be an offence that could result in a fine of up to $10,000.

 New offences

The Act also introduces the offence of misleading an agency to obtain access to someone else’s personal information and the offence of destroying a document containing personal information knowing that a request has been made.  The Act increases penalties to a fine of up to $10,000, rather than the current maximum of $2,000.

Additional powers for the Privacy Commissioner

Currently the powers of the Privacy Commissioner are largely confined to when there is an interference with privacy resulting in a complaint by an individual.

The changes give the Commissioner new powers including the ability to issue compliance notices for privacy breaches without requiring a complaint, make binding decisions on requests to access information, and the ability to use discretion not to investigate a complaint.

These changes allow the Privacy Commissioner to be more proactive with privacy issues and reduce the case load in the Human Rights Review Tribunal.

Modernisation

The new Act clarifies how the Act applies to Cloud service providers, and it makes it clear that personal information can be provided electronically.

The Act also provides clarification of when the Act applies to overseas agencies, responding to issues about international social media companies and big multinationals, including where there is transfer of information overseas.

New Privacy principle

There is an additional privacy principle, Privacy Principle 12, which places limits on disclosing information overseas.

How to prepare

There are less than three months until these changes come into effect, so it is a good idea to think about any changes or training that may need to occur in your organisation.

Think about your policies and whether they may need to be updated.

Also consider whether additional training in privacy issues may be useful, particularly given the increased powers of the Privacy Commissioner and the new offence relating to destruction of documents. The Office of the Privacy Commissioner website provides free educational resources for individuals to better understand the privacy laws.

Readers may have watched the extraordinary spectacle of the Trump-Biden debate and the more civilised and issues-focused debates between Jacinda Ardern and Judith Collins.

United States President Donald Trump no doubt engages people’s emotions. So do all leaders’ debates. They also encourage political reflection and often compel us to express our political views.

Employees are often pressured by their employer to exercise neutrality or restraint when it comes to expressing political views. In the United States we have Amazon monitoring employees’ emails. An email address affiliated with the HR department joined 78 mailing lists, the majority of which related to minority employees and activism issues, including the union organising of warehouse workers. This comes after Amazon earlier this year fired an employee who had been organising his warehousing colleagues for safer working conditions during the pandemic. Amazon also sacked several corporate employees who organised to support the warehouse workers.

These dismissals and the email monitoring had a chilling effect on the workforce, we are told. Furthermore, Amazon advertised for an employee to “analyse labour organising threats against the company”.

Amazon said that it subscribed to the mailing lists to monitor employee feedback on company culture.

In New Zealand, employees of central and local government are expected to be politically neutral, particularly around election time. Public Service Commission guidelines make clear that public servants have the same rights of political expression outside the workplace as ordinary members of the public. They must, however, be apolitical in the way they carry out their work. Like any other employees, they should not act in such a way that would bring their employers into disrepute.

We are told public servants are free to use social media in their private lives in the same way as other citizens. However, there must be a clear separation between a public servant’s work role and their personal use of social media. This is to ensure their social media communications do not undermine the political neutrality of the public services.

Employees of local Councils have in the past got into hot water for expressing views about council policy publicly, including at meetings and to the media. One employee who worked for the then North Shore City Council wrote letters to the newspaper critical of Council managers, despite receiving a warning to desist.

He was dismissed for disloyalty and insubordination. He won his case because, in the main, he wrote letters as a ratepayer rather than as an employee. Internal methods of resolving disputes were ill-defined and seldom used. He was reinstated to his job as a sewer patrol person. Perhaps, like me, you think he was a little bit lucky!

In another case, a woman employed by the Whangarei District Council was dismissed as personal assistant to the Mayor and Chief Executive. She signed the nomination form for another person standing for Mayor in the local body elections. She had obligations of political neutrality and breached Council guidelines.

The Chief Executive said her conduct had the potential to damage the Council’s reputation and her ability to operate as an impartial administrator. The Chief Executive dismissed her for serious misconduct.

The Employment Relations Authority considered the conduct in question to be more in the nature of misconduct than serious misconduct justifying dismissal. The employee in question had not read Council protocols on remaining politically neutral which appeared to have been breached.

There were other problems. The policy relating to political neutrality contained a provision which allowed the Chief Executive to give an employee permission to campaign for a candidate. That had happened in the election in question. The protocols themselves were inconsistent.

The key point was that the behaviour was more in the nature of negligence than a deliberate decision to defy council policy of which she was, in this case, unaware. She was not reinstated but got a significant financial payment for lost wages and distress.

It is important to remember that section 14 of the New Zealand Bill of Rights Act 1990 provides for freedom of speech, subject to reasonable limits prescribed by law.

Expressing strong political views that can be linked to employment is dangerous for any employee. At the very least it is likely to risk damaging the relationship with the employer. It may bring the employer into disrepute and, depending upon what is said, the comments may be destructive of the employment relationship.

We are all tempted to express strong political views because of the impact upon us of leaders such as President Trump. Some readers may say that his conduct brings the institution he serves into disrepute. The sanction is to vote for somebody else. In the case of employees, the sanction where the employer is drawn in might be their dismissal.

The moral of the story is that you are entitled to your political views but do not link them to your employer. They are your views, not your employers. You may be putting your employment in jeopardy if you do not keep a clear boundary.