The Timaru Herald

How to handle workplace bullying

- Partner at Dundas Street Employment Lawyers Susan Hornsby-Geluk

Raising a complaint of workplace bullying is one of the hardest things that an employee will ever have to do. The usual feelings of anxiety, vulnerabil­ity and self-doubt are likely to be compounded when the alleged bully is the employee’s manager.

It is this power imbalance that stops many employees coming forward to start with. There are also a number of horror stories about how employers have dealt with complaints, and about how victims have been made out to be at fault, which act as a regular warning to employees against taking action of this kind.

The fact is that employers need to get much better at handling bullying complaints, and this starts with ensuring that there are safe ways in which complaints can be raised. It is also important that complainan­ts feel as though they are involved in the process and have some level of control over how their complaint is dealt with.

There seems to be an assumption on the part of some employers that as soon as a workplace bullying complaint is made, a formal investigat­ion needs to be conducted. This is not the case.

When an employee raises a complaint, all of the available options should be discussed with them.

Depending on the nature and seriousnes­s of the complaint, the first step may be for the complainan­t to raise the concern directly with the alleged bully (this is known as the ‘‘self help’’ option).

This will only be appropriat­e if the employee feels confident and safe enough to do so, and in situations where they have not previously tried this approach. However, it is surprising how often an alleged bully is oblivious to their behaviour, and when it is raised can address this in a way which allows the employment relationsh­ip to continue constructi­vely.

The intermedia­te option is where both parties participat­e in a meeting which is facilitate­d by a skilled third party. Within this forum, the complainan­t may have an opportunit­y to raise concerns, and the alleged bully has a chance to listen and then respond.

The most formal option is that of an investigat­ion into the complaints. This can often be a lengthy and stressful process involving an investigat­or interviewi­ng both parties and other witnesses, and coming to findings of fact. These findings are written up into a report which is provided to the decisionma­ker who then determines whether any further action, disciplina­ry or otherwise, should be taken.

The interview process can be particular­ly challengin­g for complainan­ts who may feel as though their story is being questioned and tested. A thorough investigat­ion will, however, require an investigat­or to clarify any inconsiste­ncies in the accounts that are being presented and to make findings as to credibilit­y.

The standard of proof that must be applied by an investigat­or is whether a fact is establishe­d to ‘‘the balance of probabilit­y’’. In other words, is it more likely than not that the event occurred? This can be problemati­c in investigat­ions where it is one person’s word against another, because if in doubt, an investigat­or would be bound to conclude that there is insufficie­nt evidence to establish the allegation.

Having participat­ed in an investigat­ion process, complainan­ts can then face issues relating to what informatio­n they can expect to receive about the outcome. Employers are often cautious about disclosing informatio­n regarding one employee to another.

The Office of the Privacy Commission­er recently provided advice on how employers should manage requests for informatio­n from complainan­ts in bullying investigat­ions. The overarchin­g principle is that an employee is entitled to informatio­n that relates to them personally. However, they are not entitled to personal informatio­n about other people, including the alleged bully in an investigat­ion context.

The key takeaway from the guidelines issued by the Privacy Commission­er is that a complainan­t is entitled to know about the outcome of a bullying investigat­ion (as it relates to them) but they are not necessaril­y entitled to all of the informatio­n about other people who were involved.

In particular, a complainan­t will not usually be entitled to know whether the employer has taken disciplina­ry action against the alleged bully as a result of the investigat­ion.

Navigating a workplace bullying issue is difficult for all of the parties involved.

From the complainan­t’s perspectiv­e, it is important that they are consulted about the process and are provided with a range of options from the outset as to how their complaint can be dealt with. The practice of employers launching straight into workplace investigat­ions seldom results in a satisfacto­ry outcome for anyone, and continues to discourage employees from coming forward with legitimate complaints.

 ??  ?? Options available when a staff member alleges bullying include ‘‘self-help’’, a mediated meeting and a formal investigat­ion.
Options available when a staff member alleges bullying include ‘‘self-help’’, a mediated meeting and a formal investigat­ion.
 ??  ??

Newspapers in English

Newspapers from New Zealand