The Employment Relations Act 2000 prohibits discrimination on 13 grounds and has specific provisions related to racial and sexual harassment. An employee can also bring a personal grievance claim under ‘unjustifiable disadvantage’ or ‘unjustifiable dismissal’ and frame the claim around the already recognised duties implicit in the employment relationship, such as the duty to provide a safe workplace, and the duty of trust and confidence.
Note from the EEO Trust:
This policy from the Human Rights Commission has been developed specifically to fit their organisation.
It is a very comprehensive policy that also contains useful definitions and background information including the complaints procedure and resolution of complaints.
Human Rights Commission Dignity at Work Policy
The Human Rights Commission is committed to being a ‘good employer’, having equal employment opportunities for all, and to being an employer of choice.
This document sets out the policy for ensuring Dignity at Work and provides the mechanisms to address any problems associated with discrimination, harassment, bullying, or victimisation, should they occur.
The Commission has a zero-tolerance to discrimination, harassment, bullying, and victimisation and is committed to proactively working to provide a ‘safe’ work environment for all.
Such behaviour is not tolerated by the Commission and will be regarded as serious misconduct if found to be occurring.
Every person has the right to be treated with dignity and respect at work.
Any person who considers they have experienced discrimination, harassment, bullying or victimisation is encouraged to take action.
Complaints will be dealt with speedily, confidentially and fairly and complainants will not be victimised because they make a complaint.
Natural justice for those involved, including those complained against.
Appropriate action will be taken, which could involve warnings, removal from the work area or dismissal.
Organisational commitment to training on an ongoing basis.
The Human Rights Commission is committed to the Good Employer principles, EEO and being an employer of choice.
The Commission is constantly striving to achieve the highest standards of employer/employee behaviour that reflect our core business of human rights, dignity and respect for all.
This policy covers the Human Rights Commission (HRC) and the Office of Human Rights Proceedings (OHRP).
Unacceptable and unwelcome behaviour may involve employees, managers, Commissioners, a member of the public, or a person whom an employee meets in her/his official capacity. All individuals affected by the behaviour are covered by this policy. It may involve the actions or behaviour of a person or a group. It includes unwelcome behaviour that occurs at work or between workplace participants in settings outside the workplace.
The Universal Declaration of Human Rights enshrines the right to work in Article 23. Discrimination at work is prohibited in the same article. Harassment and bullying, with their potential to denigrate and humiliate an employee, strike at the free exercise of this right.
The Human Rights Act 1993 prohibits discrimination on 13 grounds. Harassment related to any one of these grounds could be seen as a form of discrimination. There are specific provisions related to racial and sexual harassment and victimisation. An employee may make a complaint both about the employer and the offending employee.
The Employment Relations Act 2000 like the HRA prohibits discrimination on 13 grounds and has specific provisions related to racial and sexual harassment. An employee can also bring a personal grievance claim under ‘unjustifiable disadvantage’ or ‘unjustifiable dismissal’ and frame the claim around the already recognised duties implicit in the employment relationship, such as the duty to provide a safe workplace, and the duty of trust and confidence.
Health & Safety in Employment Act 1992 makes explicit that employers have an obligation to provide a safe, secure work environment. The legislation requires employers systematically to identify hazards in the working environment. Bullying and harassment are stressors that may lead to reports of stress, and may thus constitute hazards under the 2003 amendments to this Act which extended the definition of ‘harm’ to include physical or mental harm caused by work related stress.
The Crown Entities Act 2004 requires Crown entities to be ‘good employers’ to operate personnel policies necessary for the fair and proper treatment of employees in all aspects of their employment, including ‘good and safe working conditions’. The New Zealand Court of Appeal has noted that the duty to take reasonable steps to maintain a safe workplace is an implied term of employment contracts.
Police – Complaints of a criminal nature, for example physical or sexual assault or stalking are a police matter as well as an employment matter
Harassment Act 1997
Official Information Act 1982
Privacy Act 1993
Other Relevant Policies and guidelines
- Collective Employment Agreement
- Code of Conduct
- EEO Commissioner Module on Bullying & Harassment
- EEO Policy
- Governance Statement
- Good Employer Plan
- Health & Safety Policy (in draft)
- Privacy and Information Policy (dated June 2002)
- Privacy and Information Protocol (dated June 2002)
- Crown Entities Act (Good Employer provisions)
- SSC Standards of Integrity & Conduct
Document Management Control
|Prepared by||EEO Working Group|
|Owned by||Executive Director|
|Authorised by||Chief Commissioner|
|Date Issued:||25 June 2009|
Detailed Policy Contents
This section contains the following information:
- What is not Harassment?
- Complaints Procedure
- Resolution of Complaints
– a generally ‘hostile’ work atmosphere of repeated put-downs, offensive stereotypes, malicious rumours, or fear tactics such as threatening or bullying;
– a general work atmosphere of repeated jokes, teasing, flirting, leering or sleazy ‘fun’;
– harassing other communication technology users, whether through language, frequency or size of messages;
– comments or behaviour that express hostility, contempt or ridicule for people of a particular race, age, sexual orientation or any other identified group; and
– an isolated but significant incident, such as a violent attack or sexual assault.
– making offensive remarks about a person’s race;
– mimicking the way a person speaks;
– making jokes about a person’s race;
– calling people by racist names; and
– deliberately pronouncing people’s names wrongly.
– personally sexually offensive verbal comments;
– sexual or smutty jokes;
– repeated comments or teasing about someone’s alleged sexual activities or private life;
– persistent, unwelcome social invitations, telephone calls or any other form communication technology from workmates at work or at home;
– following someone home from work;
– offensive hand or body gestures;
– unwelcome physical contact – e.g. patting, pinching, touching or putting an arm around another person’s body;
– provocative visual material – e.g. posters of a sexual nature;
– sending and receiving pornographic, sexually explicit or offensive material through communication technology;
– hints or promises of preferential treatment in exchange for sex, or threats of differential treatment if sexual activity is not offered; and
– sexual assault and/or rape.
– threats, intimidation, stand over tactics and coercion;
– verbally abusive or degrading language or gestures;
– shouting, yelling or screaming;
– unexplained rages;
– unjustified criticism and insults, nit-picking and fault finding without justification;
– constant humiliation, ridicule and belittling remarks;
– unjustified threats of dismissal or other disciplinary procedures; and
– punishment imposed without reasonable justification.
– deliberately overloading an employee with work and imposing impossible deadlines;
– sabotaging someone’s work by withholding information that is required to fulfil tasks;
– hiding documents or equipment;
– constantly changing targets or work guidelines;
– not providing appropriate resources and training;
– isolating or ignoring someone on a consistent basis; and
– changes in the duties or responsibilities of an employee to the employee’s detriment without reasonable justification.
– sidelined for training or promotion;
– snubbed by co-workers; and
– pressured to drop the idea of a complaint.
3. What is not Harassment?
|3.1What is not harassment?||
– friendly banter, light-hearted exchanges, mutually acceptable jokes and compliments;
– friendships and relationships where both people consent to the relationship;
– issuing reasonable instructions and expecting them to be carried out;
– warning or disciplining someone in line with organisation policy;
– insisting on high standards of performance in terms of quality, safety and team cooperation;
– legitimate criticisms about work performance (not expressed in a hostile, harassing manner);
– giving critical feedback, including in a performance appraisal, and requiring justified performance improvement;
– assertively expressing opinions that are different from others;
– free and frank discussion about issues or concerns in the workplace, without personal insults; and
– targeted EEO policies, parental leave provisions, or reasonable accommodation and provision of work aids for staff with disabilities.
|4.2Access to information||
– it would endanger the safety of another person;
– it would involve the unwarranted disclosure of another person’s affairs;
– the information concerned is subject to legal professional privilege; or
– it would breach an obligation of privacy undertaken at the time the information was gathered.
|4.3Official Information Act 1982 & disclosure of Information||
|4.4 Privacy Act 1993||
– Ensure it collects only information that is necessary to enable it to carry out its lawful functions.
– Wherever possible gather information directly from the person concerned.
– Explain to the person it is gathering information from:
ñ whether or not they have a choice about providing the information
ñ what the information will be used for
ñ who the information will be disclosed to
ñ what their rights relating to access to and correction of information are.
– Refrain from collecting information by means that are underhand or unfair.
5. Complaints Procedure
|5.2Self help||The complainant may:- tell the respondent verbally that their behaviour is offensive and request that it stop;- write to, or e-mail the respondent about the behaviour on a ‘personal and confidential’ basis requesting that it stop; or
– speak to the respondent in the presence of a support person of their choice requesting that the behaviour stop.
|5.3Informal complaints procedure||
– an appropriately skilled and trained mediator is available (maybe from the Department of Labour);
– both parties are interested in trying to resolve the situation through mediation;
– an appropriately trained and skilled mediator is available who has the confidence of both parties.
|5.4Formal complaints procedure||
– the identity of the person(s) against whom the complaint is made;
– what happened (including the time(s), date(s), place(s), what was said and done);
– how the complainant responded and what impact the alleged behaviour had on them;
– what actions (if any) the complainant has taken to stop the alleged harassing behaviour;
– whether anyone else witnessed the alleged behaviour; and
– an indication of the outcome that the complainant is seeking.
Note: In all cases the Corporate Services Manager, Executive Director, Chief Commissioner or Audit Chair may select an alternative person to act in their stead should they judge that to be the right thing to do in the particular circumstances of the situation.
– freedom from bias on the part of the person making the decision/judgment; and
– transparency and fairness of the procedure.
– taking a complaint seriously and acting on it immediately;
– maintaining confidentiality;
– giving the problem resolution procedure priority and responding in a timely manner;
– informing a respondent of the allegations against them;
– giving a respondent the opportunity to respond to the allegation;
– not asking irrelevant questions;
– keeping both parties informed about progress of an investigation;
– ensuring the parties’ safety is protected during an investigation, including protection from retaliation or victimisation;
– giving both parties a full opportunity to read/see and respond to all evidence collected in an investigation before a decision is made;
– considering all the evidence and weighing it carefully before deciding whether there is substance to the complaint;
– providing both parties with a copy of the decision and the reasons for the decision, and their options in terms of settlement, review, etc.;
– ensuring any disciplinary action is proportionate to the level of behaviour complained of; and
– offering the right of appeal or review
|5.6External complaints procedure||
|5.7Harassment by clients or contractors||
6. Resolution of Complaints
|6.1Resolution of substantiated complaints||
– the person who has carried out the harassment;
– the complainant; and
– the organisation
– formal apologies;
– counselling, mentoring or training for the harasser/bully;
– counselling for the complainant;
– appropriate measures to restore the relationship between the two parties (this could include relocation of the harasser/bully, depending upon the seriousness of the incident);
– reimbursement of any costs associated with the discrimination, harassment, bullying or victimisation such as medical or counselling fees;
– re-accrediting any annual leave taken as a result of the discrimination, harassment, bullying or victimisation;
– disciplinary action against the harasser/bully, for example oral or written warnings (could include dismissal depending upon the seriousness of the incident); and
– further general training for Commissioners, Managers or staff on the issues of harassment, adjustment of policies and procedures to either reduce the risk of harassment or to enable the organisation to respond more effectively.
– what discrimination, harassment and bullying are, what they are not, and why they are an issue;
– the options open to complainants;
– managers’ responsibilities towards all parties involved;
– handling interviews with complainants and respondents;
– why it is difficult for people to complain;
– what managers can do to prevent discrimination, harassment and bullying;
– what to do when harassment is alleged and how to deal with the complainant as well as the alleged harasser; and
– effective delegation, motivation and improving communication and interpersonal skills, as well as in dealing with employee differences and conflict.
– Listen to the individual;
– Provide advice on the options for resolving the issue;
– Support the individual to choose a course of action;
– Create an environment that assists the individual to follow through with their chosen course of action; and
– Follow up to ensure the problem is resolved
Details of Contact People are available on staff notice boards, the shared drive and in the New Employee Induction Manual.
|7.3Corporate Services Manager||
– appropriate support of Commissioners, the Management Team and other staff of the Commission is provided;
– training on preventing discrimination, harassment and bullying in the workplace is resourced and provided for all staff and Commissioners every two years;
– in each office of the Commission there is a minimum of one trained contact person able to respond sensitively to employees who want advice on discrimination, harassment, bullying, and victimisation; ideally, contact people will be representative of staff;
– contact people receive support and training as needed to carry out their role effectively and are allocated time to be able to adequately undertake their duties;
– all records are kept for the appropriate period, according to the Public Records Act, and they are kept confidential; and
– selection criteria for management positions include the requirement that managers have demonstrated ability to deal with sensitive human resource issues.
– make it clear to staff that the Commission will not tolerate any form of harassment;
– set standards of behaviour and model exemplary standards of professional conduct at all times;
– ensure that the work environment does not condone language, behaviour or visual material that is unwanted by, or offensive to any staff member;
– have a role within the Commission ensuring accessibility and promoting and explaining the Commission’s Dignity at Work policy;
– provide appropriate information and education on discrimination, harassment, bullying, and victimisation to all new staff as a standard part of induction;
– ensure that all complaints are dealt with according to the standards set out in this policy;
– act quickly and effectively where a complaint is bought to their attention;
– treat any complaint with confidentiality and sensitivity; and
– not trivialise any complaint.
Recognising and Eliminating Bullying in the Workplace’, by the Office of the Employee Ombudsman, South Australia, March 2000
This guide is concerned with workplace bullying and our main interest here is in how to stop it. This means that we will be considering such matters as the reasons why some people in positions of power bully others and others do not and what needs to be done in order to take power away from those who misuse it. As will become clear in this guide, the whole issue of workplace bullying is concerned with power, depowering the bully and empowering the victim to resist him or her.
This guide aims to show how this can be achieved and, as such, is intended for everyone who may be affected by bullying, no matter in what way. It therefore should be read by employees, those concerned for their welfare such as partners and parents, those responsible for protecting their interests such as union and health and safety representatives, their supervisors and managers and anyone else involved with workers at work.
This brochure provides tools and guidelines to strengthen and reinforce trade union policies and actions to STOP Violence Against Women. Each year the ITUC in cooperation with the Global Union Federations (GUFs) plans initiatives and activities to place this topic high on the agenda of trade unions, employers and governments.
25 November, United Nations International Day for the Elimination of Violence against Women, is an ideal opportunity for a collective and united trade union response in which we say NO to violence against women. Violence against women must be wiped out in our homes, societies and the workplace if women are to have equal opportunities to access DecentWork and a Decent Life.
Colin Ross, Community Lawyer (Taken from Wellington Community Law Newsletter Dec 2010)
How serious is workplace bullying and why is it such a hot topic? A recent survey found that one in five New Zealand workers had at some stage been the victim of workplace bullying. Significantly, the survey identified that 25 per cent of victims and 20 per cent of witnesses of bullying left the organisation rather than confront the problem.
As many attendees at our recent Law for Lunch seminar commented, workplace bullying can be extremely subtle, insidious and persistent. It results in humiliation and distress for victims, and may interfere with their work performance. It includes a staggering range of behaviour, such as the phenomenon of ‘mobbing’, when workers gang up on managers or fellow employees. Perpetrators attempt to gain power over co-workers who threaten their dominance. Bullies create a dysfunctional work environment: to survive, co-workers are drawn into a vortex of collusion and manipulation. Bullies need cohorts. Cohorts cooperate with the knowledge that they are one step away from becoming a victim themselves. In many cases, bullying-type behaviours remain hidden, and victims would rather resign than confront the perpetrator.
There is currently no legislative definition of workplace bullying. Under Section 6 of the Health and Safety in Employment Act 1992, an employer is required to take all practicable steps to ensure the safety of employees while at work, including protection from both physical and psychological harm.
Recent cases before the Employment Relations Authority (ERA) have supported the decisions of employers who have dismissed bullying employees. However, the ERA has also determined that strict or hard management does not constitute bullying. For example, an employee who is undergoing performance management that is being conducted in a fair and reasonable manner, would not be able to make a claim of bullying. In some cases, the employee has been found to be overly sensitive to behaviour that falls well within the range of what could be expected in a normal workplace.
In a widely publicised case, a manager at The Warehouse complained about her dismissal after her employer found that she had been bullying co-workers. Four staff members had complained that they had been subject to or had witnessed bullying behaviour by the manager, including talking down to people, intimidating and publicly humiliating them. Significantly, none of the complainants was willing to confront her directly and only reported the behaviour to senior management while the manager was on leave. All four staff members eventually resigned. The ERA concluded that the manager’s behaviour was a risk to the health and safety of other employees. Additionally, the employer had followed a fair and proper procedure and was justified in its decision to dismiss her.
Does New Zealand need a legislative definition of workplace bullying? Obviously, bullying behaviour is not restricted to the workplace, but is a major issue throughout society, including in families, schools, educational institutions and resthomes (from the cradle to the grave). Bullies are finding new ways to perpetrate their behaviour by using new technology (text bullying is a clear example). Any legislative definition of workplace bullying would have to take a relatively narrow view of a behaviour that features through all levels of society. We would suggest that, as more and more cases come before the courts and the ERA, judicial interpretation of bullying will become clearer, and may prove to be more flexible than any legislative definition.
Regardless, eliminating a bullying culture within an organisation involves a strong commitment at all levels. Organisations need good policy, an effective complaints procedure, leadership role modelling, support for victims of workplace bullying, and workplace education. In the meantime, websites such as www.bullyonline.org/workbully provide valuable information and include steps that employees can take to ensure they don’t become victims of this scourge.
Workplace bullying is defined as:
Deliberate, repeated, and hurtful acts that take place of work and/or in the course of employment. Bullying may include direct or indirect harassment, professional misconduct, or abuse of power. It is characterized by unfair treatment, rumor spreading, or any repeated action you find offensive, intimidating, malicious, or insulting. Any actions that could reasonably be regarded as undermining an individual’s right or dignity at work is considered workplace bullying.
The following findings are from our sample of 1,117 university staff. Of the sample, 64% was female and 26% male. Gender differences found in workplace bullying are detailed below.
- 70% of female respondents reported having been bullied at work, compared to 53% of male respondents. This difference was statistically significant.
- 61% of female victims were academic staff while 39% were general staff.
- 73% of female academic staff who responded reported being bullied while 66% of general staff.
- 56% of female victims reported being bullied by another female in the workplace while 44% were bullied by a male.
- The majority of female victims (60%) reported the bully was someone with authority over them like a manager, while 20% reported it was a co-worker at a higher university ranking, 16% were bullied by a co-worker at the same ranking, and 4% bullied by a co-worker at a lower ranking.
Comparisons of the scores of those who had experienced bullying and those who had not on subscales of Maslach’s Burnout Inventory found that staff members who were victims of bullying reported significantly more occupational stress than non-victims.
T-tests comparing female and male victims of workplace bullying indicated that female victims reported experiencing more forms of workplace bullying, more emotional exhaustion, and more effects of victimization. Male victims reported higher levels of workplace stress resulting in depersonalization.
Male and female victims did not differ significantly in the percentage who were still working with the bully (67% Female, 70% Male), whether they felt it had effected their health (70% Female, 68% Male) or performance (70% Female, 62% Male), or whether workplace bullying had led them to consider leaving their job at the university (74% Female, 69% Male).
Again I must point out the limitations of this sample:
- This is not a random sample and should not be considered representative of all university staff.
- It is possible that those who have experienced bullying at work were more likely to respond to the on-line survey. If so, this would limit generalizability of the prevalence numbers. However, responses from more victims would strengthen the findings regarding the different forms of bullying and the effects reported by staff.
This research as conducted at the end of 2005 and the beginning of 2006 through an anonymous survey on workplace bullying in New Zealand Universities. The findings from this research are in the process of being written up for submission to academic journals. Please do not cite without permission. Contact Dr. Juliana Raskauskas, J.L.Raskauskas@massey.ac.nz, with any inquiries.
Ask any women about sexual harassment, and she is likely to have experienced it or to know of cases of it at work. In industrialised countries, 42-50 percent of female workers have been sexually harassed, in the European Union, 40-50% of women, and in Asia-Pacific countries between 30-40% of women workers reported some form of harassment. In a recent study in South Africa, 77 percent of women respondents experienced sexual harassment sometime during their working lives3. Few Latin American countries have recognised sexual harassment as a category of degrading treatment despite the fact that, according to ILO figures, between 30 percent and 50 percent of women workers in the region have suffered some form of sexual harassment, of varying degrees of severity, at some stage in their workplaces.
Bullying can have a serious impact on a workplace. For an employee who is targeted by workplace bullying, the workplace can become a place to fear. For an employer, the hidden costs of such behaviour can quickly mount up. Increased job dissatisfaction, workplace stress and staff turnover all lead to a less productive workplace, and an employer is also at risk of the costs associated with legal claims by employees who have been bullied.
This discussion will tackle the fundamental issue of what constitutes workplace bullying. It will then outline the legal rights and obligations of employees and employers when workplace bullying occurs.[Read more…]