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How The Law Deals with
Workplace Bullying
Anna Fitzgibbon, Partner, LawWorks
Three Key Areas
The Legal Framework
– Bullying – the legal basis
– Health & Safety in Employment Amendment Act 2002
– Personal Grievance claims under Employment Relations Act
Recent Case Law
– Health & Safety in Employment Amendment Act prosecution
– Personal Grievance claims
Dealing with bullying claim
– Assessing genuineness of claim
– Legal strategies for managing bullying and harassment in
the workplace
The Legal Framework
Increase in bullying related claims - why?
– AG v Gilbert – work related stress claim
– Workplace bullying – Andrea Needham
– Health & Safety in Employment Amendment Act 2002
The Legal Framework
AG v Gilbert
– Implied duties to take reasonable steps to maintain a safe workplace
Health & Safety in Employment Amendment Act 2002
– Came into force on 5 May 2003
– S.4(8) repeals the definitions of the terms “harm” and
“hazard”
– Extended definition of “harm” to include workplace stress
– Definition of “hazard” includes a person’s behaviour being an actual
or potential cause of harm to another person
The Legal Framework
– “harm –
– (a) means illness, injury or both; and
– (b) includes physical or mental harm caused by work – related
stress
– “hazard” –
– (a) means an activity, arrangement, circumstance, event,
occurrence, phenomenon, process, situation, or substance
(whether arising or caused within or outside a place of work) that
is an actual or potential cause or source of harm; and
– (b) includes • (i) a situation where a person’s behaviour may be an actual or
potential cause or source of harm to the person or another person
The Legal Framework
– Under the HASE employers have a duty to take all practical
steps to ensure their safety and the safety of others
– Employer may be prosecuted by OSH if has not ensured safety
of employee and employee suffered work related stress
– Department of Labour v Nalder & Biddle
The Legal Framework
Personal Grievance Claims
– Unjustifiable disadvantage
– Unjustifiable constructive dismissal
– (A.G v Gilbert (CA))
– Key Elements
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Duty to maintain a safe workplace
Employee suffered harm
Employer has breached the duty
Harm to the employee caused by work related stressors
Breach of duty was sufficiently serious to make it reasonably foreseeable
As a result employee resigned – constructive dismissal
- Whelan v A.G.
Case Law
Department of Labour v Nalder & Biddle
– First OSH prosecution under HASE
– Employee experiences high workloads following resignation of
financial manager and assistant
– Suffered stress related symptoms including chest pains
– Within three months employee notified Chief Executive of
medical condition
– Attempts to employ staff made but work pressure continues
Case Law
Department of Labour v Nalder & Biddle cont.
– all practicable steps to ensure safe workplace not taken
– Medical evidence showed causative link between medical
problem to work related stressors
– Whilst steps were taken to find solution, none found
– Company fined $8,000 plus medical and legal costs
– Confidential settlement also reached under ERA
Case Law
Koia v Attorney General in respect of the Ministry of
Justice
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Case flow manager at Rotorua District Court
Changed management programme creates pressure for staff
Conscientious employee
Perceived failure to respond by Department to his requests for
assistance
– Court accepts stressors in the workplace
– No clinically significant disorder although possibility may arise
in the future
Case Law
Koia cont…
– Court accepts that no systematic programme for identifying and
dealing with stress
– No breach of duty because of approach taken by sensitive
management
– Not foreseeable as Mr Koia did not give sufficient notice of the
stress he was under
Case Law
Whelan v Attorney General for Children & Young Persons
Service
– Whelan employed as a risk assessment supervisor for CYFS
dealing with child abuse cases
– Takes 2 year study break because of work pressure
– On return from study break employee requests transfer
– Despite requests employee assigned to same role previously
found stressful
– Increasing workloads; poor resourcing and inexperienced and
incompetent team; assault on another social worker in presence
of employee contribute to stress
– request to transfer blocked by manager;
– Employee suffers major health collapse & retired on medical
grounds
Case Law
Whelan cont…
– Medical specialists support view that medical conditions caused
by work related stressors
– Court accepts employee’s workload was excessive and pressure
unremitting
– Work areas in a “state of crisis”
– Employer knew work by its nature was highly stressful and
employees affected by stress
– No remedial action taken by employer
– Breach of contractual duty of care
– Employer had failed to take steps to avoid foreseeable ill health
consequences
– Employer failed to provide a safe system of work
Dealing With Bullying Claim
– Unjustifiable disadvantage – s103(1)(b) ERA
• (a) intervention to alleviate bullying/stressful work situation
• (b) response to allegations of poor performance
• (c) to prompt a negotiated exit because of (a) or (b)
– Unjustified dismissal – s103(1)(a) ERA
• (a) employee’s health has suffered because of bullying and stress – resign
• (b) counter attack in response to disciplinary process
• (c) to prompt negotiated exit because of (a) or (b)
Dealing With Bullying Claim
Responding to a Claim
– Be proactive – investigate claims
– Consult with employee to identify “particular stressors”
– Deal with stressors e.g. work organisation, workload, distribution,
conflicts - bullying
– Counselling/EAP
– Proper medical diagnosis by 1 or more practitioners (see OSH
guidelines)
– Sick leave
– See Williams v The Warehouse Ltd
– Check employment agreements and policies, training
Summary
– Increase in bullying and work related stress claims in the last few
years
- A.G v Gilbert
- HASE amendments
- Heightened public awareness (Andrea Needham – bullying)
– OSH can prosecute for harm caused by workplace stress (Dept
of Labour v Nalder & Biddle)
– Employee can bring a personal grievance claim alleging
constructive dismissal for workplace stress if necessary
elements present (Gilbert, Whelan)
– Case law confirms liability of employers who fail to provide safe
workplaces resulting in reasonably foreseeable illnesses
– “Bully” can bring a claim of unjustifiable dismissal – Williams v
The Warehouse Ltd