No bullying found but employer still liable | Employment Law Update February

Although the Employment Relations Authority found that bullying had not taken place, the employer was ordered to pay $20,000 in compensation for the employer’s failure to properly investigate one of the instances of conduct alleged to amount to bullying.

The Authority found that none of the examples raised by the employee amounted to bullying nor unreasonable behaviour, except for one isolated incident. This related to the employee’s team leader playing with her phone reflecting sunlight around the room. This resulted in the light shining in the employee’s eye, causing her pain and discomfort.

The light incident was investigated by the manager of the employee’s team leader. The manager concluded that the light shining incident was entirely accidental. No further action was recommended. The following month, the employee raised a personal grievance alleging bullying behaviour by management. The employer appointed an external investigator. The employee requested that the light incident be included with the terms of reference for the investigator. However, there was no specific reference to this incident in the terms of reference. Rather, the investigator’s report provided that because the light matter had been separately investigated, and a conclusion made after an investigation process, the investigator did not believe that it was open to them either to reach a different view about the matters previously investigated or to reopen a process which has been concluded.

The Authority considered the statement of the investigator arose from a mistaken belief that the health and safety investigation already undertaken was also an employment investigation. The Authority found that the employee’s personal grievance about the light incident and the subsequent investigation report was not investigated at all and that no further action about the personal grievance relating to the light incident was taken. The Authority found that there was merit to the employee’s concerns about the incident and the adequacy and impartiality of the subsequent investigation by the manager. The Authority considered that the employee’s team leader had been deliberately shining the light around the room. The team leader was aware that the employee was photo-sensitive due to her concussion, yet shone the light in the direction of her face.

The Authority did not find that the team leader consciously intended harm, but that her conduct was reckless and unreasonable behaviour. However, the Authority found that the definition of workplace bullying had not been met, because it was not persuaded more than one of the events complained of were unreasonable behaviour. Workplace bullying requires more than a single event and there had not been repeated unreasonable behaviour. However, the Authority found that the employer’s inaction amounted to an unjustified disadvantage grievance.

This determination demonstrates that when managing bullying allegations, whether or not bullying has occurred is not the only issue of importance. The process followed by the employer when allegations are made is also of the utmost significance.

See Rampton v The Chief Executive Wellington City Council [2019] NZERA 490.

Reproduced with permission of Wolters Kluwer NZ

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