ERA makes ground-breaking ruling in workplace bullying case

ERA makes “ground-breaking” ruling in workplace bullying case: advocate

The Employment Relations Authority has made a ground-breaking ruling in a workplace bulling case, according to a Hamilton organisation that advocates for victims of workplace bullying.

CultureSafe NZ represented a North Island kindergarten teacher after she alleged she had been bullied by the head kindergarten teacher. Their client was later dismissed by the kindergarten after she refused to return to work under her head teacher because she felt unsafe.

CultureSafe NZ Ltd director Allan Halse said he felt the unjustified dismissal ruling by the ERA* was ground breaking due to the $15,000 humiliation compensation granted being double the usual amount given in these cases and the 17-month wage reimbursement amount also exceeded the average maximum timeframe granted.

“Normally the average amount given if you win at the Authority is between $6000 and $8000 compensation for hurt and humiliation cases, and a maximum of three months’ wage reimbursement, and that’s only if you win,” Halse said.

After more than 20 years as a primary school teacher, CultureSafe’s client retrained as an early childhood education teacher and was offered a job at the centre where she had completed her required practicum training.

In March 2015, she made a written bullying complaint against the head teacher and by agreement was placed on paid special leave while the investigation took place. On June 12, 2015, her complaint was upheld and the head teacher was disciplined, but not dismissed.

“The bully was found to be a bully,” Halse said.

She was concerned about returning to work under the head teacher in the same circumstances. The head teacher refused to acknowledge any wrongdoing and was not prepared to apologise for her actions.
CultureSafe NZ Ltd was enlisted to help her resolve the situation by prompting her employer to acknowledge that the bullying had caused harm.

“Our client wanted more reassurance to be able to return to work in a safe working environment,” Halse said.

He said the Kindergarten Association advised his client that if she wanted to return to work she must do so under their conditions and that she must compromise all potential legal claims against the kindergarten or they would take it as her resigning from her job.

CultureSafe responded to the Kindergarten Association advising them that their client was reluctant “to be forced in to exactly the same work environment under the same bully” and felt the Association intended to bully her in to resigning.

“One of the things that we see occurring time and time again is that when a person says that they feel unsafe, they are forced to remain in their same working environment despite the physiological and psychological damage that it has on their wellbeing,” said Halse.

The termination case ended up being ruled in CultureSafe NZ Ltd’s favour, stating that it was an unjustified dismissal for their client.

The ERA ruled that she will have her wages reimbursed of what she would have earnt since the unjustified dismissal in October 2015 up until the date of determination at the ruling on February 28, 2017. She would also receive a $15,000 compensation for her humiliation suffered during the ongoing investigation.
He said the ruling sends a message to employers and organisations that they cannot force staff to work in an unsafe working environment.

“Unfortunately, we deal with a lot of employers who don’t like to follow legitimate processes and this occasion is a good example of that,” Halse said.

“We’re incredibly pleased to see the ERA pass down this important ruling, which employers should heed.”
However, the win was short-lived as the publication of this decision has been fought since March 1, 2017, just a few days after the ruling, when a non-publication order was put in place by the Authority and an application for permanent non-publication had to be challenged.

The determination was subsequently anonymised in order to have it published. Halse said there has been a significant delay due to the Authority not putting the determination on the Employment Law Database website even though the second determination was issued and received on May 18. Because of the impact the ruling will have, Halse has been trying for four months, since the original determination was received on January 28, 2017 to have it published.

Halse said he was disappointed that it had taken six weeks for the final determination to be published.
“It should have only taken days to put up, rather than months.”

Halse cited CultureSafe NZ Ltd’s most recent determination from the Authority as an example – that of Morgan vs the Auckland District Health Board, dated June 26, 2017, has already been published.
“The delay in publishing the determination is actually preventing access to justice for not only our clients but all other workplace bullying victims being represented by unions and lawyers,” Halse said.

He said that throughout New Zealand 1 in 5 people are bullied in the workplace.
“That equates to 400,000 New Zealanders who are being bullied right now.”
* ([2017] NZERA Auckland 14)

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