Inappropriate behaviour: We prefer to give it a pass
What a week in politics! With all the men dropping like flies, it makes me think that Labour’s 2013 pledge to ensure that women made up 50 per cent of the party was not such a bad idea. The “man ban” — not to be confused with “man bun” — could have been great had it been implemented, but then again, the catchy tagline overshadowed the true content of what was being proposed. That is, equality.
We should explore sexual harassment in the context of disgraced MP Andrew Falloon, but it is exhausting, quite frankly. But as a fifth person has come forward, and police are now involved, it brings to light how nuanced inappropriate behaviour can be, and the problems associated with trying to fit such behaviour into Aotearoa’s legal framework.
Harmful Digital Communications Act
Suppose the harassment does not meet the threshold in the Crimes Act, there is the Harmful Digital Communications
Act (HDCA). Communication under the Act should not: disclose sensitive personal facts about an individual; be threatening, intimidating, or menacing; be grossly offensive to a reasonable person; be indecent or obscene; be used to harass an individual; make a false allegation; contain a matter that is published in breach of confidence; incite or encourage an individual to commit suicide; or denigrate an individual by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation or disability. Individuals in breach of the Act could be sentenced to two years in prison or up to a $50,000 fine.
In 2019 there were 137 charges for HDCA offences. The majority (58 per cent) resulted in a conviction. In 2018 there were 105 charges, where 59 per cent resulted in a conviction. Of the 108 charges in 2017, 71 per cent resulted in a conviction.
In other news, Andrew Falloon was not the only MP to fall on his sword last week. Iain Lees-Galloway was dismissed over having a year-long extra-marital affair with a former staffer. Sceptics criticised Prime Minister Jacinda Ardern’s decision, saying the Worksafe Minister had suffered the brunt of the political-correctness-gone-mad brigade. They were consenting adults, they said. Everyone strayed at times, they said. How else were you supposed to find a partner, they said.
Inappropriate behaviour
Beyond moral questions of trust and integrity, you have to question New Zealand’s workplace culture if the head of workplace health and safety could “stray” for a year. Would he have got the cut if it had not been election year? There is also the issue of power imbalance, and influence.
There are certain professions that address these situations, but they are driven by a duty of care. Doctors are prohibited from dating patients under the NZ Medical Association Code of ethics. They can, however, date other doctors, and nurses, presumably. Lawyers are required to be “fit and proper” people as a prerequisite to passing the bar, but we know that means little. Academia and teaching also have codes of conduct, but that has meant little in the context of alleged inappropriate behaviour by AUT Professor Nigel Hemmington and Professor Max Abbott.
Self regulation may not work, so the question is whether inappropriate behaviour would fall within the holy trinity: the Crimes Act, the Employment Relations Act (ERA), and the Health and Safety at Work Act.
The Lees-Galloway issue would not fall within the Crimes Act, because we know the relationship was consensual. Suppose the staffer felt harassed, they could raise a personal grievance under the ERA on the grounds of sexual harassment.
Access to justice
Traditionally there have been issues around the cost of representation and the emotional cost that goes with going before the Employment Court. This may be changing, however, as Chris Bishop’s Lawyers and Conveyancers (Employed Lawyers Providing Free Legal Services) Amendment Bill was drawn from the biscuit tin last week. It aims to enable employed lawyers to provide free legal services, provided their employer allows it.
The Employment Court weighed in to the issue this month in the case of Innovative Landscapes Limited and Popkin. Chief Judge Christina Inglis said: “In my view the work of Community Law Centres and lawyers acting on a pro bono basis in this jurisdiction is indispensable for ensuring that the underlying purposes of the statute are met, including those in the most vulnerable position have access to the Employment Court for ventilation of their employment disputes.”
What about the Health & Safety at Work Act? The Act requires employers to provide a safe workplace, free of bullying and harassment, for example. WorkSafe received 96 bullying and 12 harassment complaints in 2018; 76 bullying and three harassment complaints in 2019; and 19 bullying and one harassment complaint this year. But since its 2015 introduction, there have been no bullying or harassment convictions. It says a lot. As a society, we are not ready to take inappropriate behaviour seriously.