Bullying & Harassment: a health & safety update

19 September 2018

WorkSafe New Zealand recently published an article regarding workplace bullying that included some alarming statistics on the rate of bullying in New Zealand workplaces. According to some studies, one in three workers report experiencing some form of bullying or harassment every year.


There has also been recent publicity around the apparent lack of prosecutions by Worksafe involving bulling and harassment. In the past 4 years Worksafe has recorded 125 cases that indicated bullying out of over 40,000 incidents or events notified. Only 11 notifications were investigated and 57 were referred to other agencies or referred back to the PCBU to self-manage. Worksafe has indicated that it considers bullying is an “emerging issue”, not just in NZ but globally.


Despite this low rate it is important to be aware that bullying is one of a number of workplace risks that may result in a health and safety incident being reported to WorkSafe and it is possible for employers to face prosecution where an employee suffers serious mental harm and WorkSafe finds that the employer failed to take all reasonably practicable steps to protect that employee from bullying and harassment.


As part of WorkSafe’s harm prevention work this year, they are focusing on work-related psychosocial harm which can result from workplace bullying and harassment. Psychosocial hazards include but aren't limited to stress, violence and other workplace stressors. Work is generally considered to be beneficial to mental health and personal wellbeing and it provides people with structure and purpose and a sense of identity.


This is also reflected in WorkSafe’s updated definition of bullying, which now specifically includes psychological harm.


Relevantly, a recent decision in the High Court has reviewed the guidelines for sentencing for offending under the Health and Safety at Work Act 2015 (HASWA). The case is interesting as it involved three appeals relating to the way the District Court had applied the statutory increase to sentencing levels under HASWA.


The Court held that sentencing under the HASWA requires a four-step process:

a. Assess the amount of financial reparation made to the victim;

b. Fix the amount of the fine with reference to the guideline bands, and then with reference to any aggravating and mitigating factors;

c. Determine whether any further orders under the HAWSA are required (e.g. an adverse publicity order, an order for restoration, or an enforceable undertaking); and

d. Make an overall assessment of proportionality and appropriateness of the combined packet of sanctions imposed by the preceding three steps. This includes consideration of the ability to pay and also whether an increase is needed to reflect the financial capacity of the defendant.

The Court has also issued the following guidelines for sentencing bands to be used when imposing a fine:

Low culpability – Up to $250,000

Medium culpability – $250,000 to $600,000

High culpability - $600,000 to $1,000,000

Very high culpability – $1,000,000 plus


It should be noted that the Court’s conclusions related to fines against three defendant businesses who were convicted of failing to comply with a duty that exposed someone to a risk of death or serious injury or illness (the maximum fine for such an offence is $1.5 million).


The Take Out from this is that large fines may be imposed on employers even if offending is at the lower level of culpability. Employers must ensure that they are taking all reasonably practicable steps to remove or manage workplace risks, and this must include ensuring that the workplace has a culture free from bullying and harassment, and must take appropriate steps when complaints are received.


Contact our legal team if you need help in this area, whether it is to check and update your policies or to assist in dealing with a complaint.


Diana Hudson | Managing Solicitor


 


Legal Team


Diana Hudson, Managing Solicitor 03 456 1804 / 021 816 469 diana@osea.org.nz


David Browne, Solicitor 03 456 1812 / 021 225 6938 david@osea.org.nz


Angela MacKenzie, Solicitor 03 218 7962 / 021 756 809 angela@osea.org.nz


Grant Walker, Advocate 03 455 5165 grant@osea.org.nz