Creating a workplace free from bullying, harassment and discrimination
- Work environments should be free from intimidation and inappropriate behaviour.
- It is the employer’s responsibility to take steps so that employees are safe and free from bullying, harassment and discrimination at work. Building a positive workplace culture promoting respect is an important part of this.
- Complaints of bullying, harassment and discrimination should be investigated straight away by the employer, and the person who has been subjected to the behaviour should be supported appropriately by the organisation. If the employer doesn’t deal quickly with complaints, and if (eg an inappropriate joke is made) they decide to ‘let it go’, this culture can become ’normal’ and it will become harder to change in the future.
- Workplace policies set behaviour expectations in the workplace, however, if managers are seen to tolerate inappropriate behaviour from staff or customers, then this culture may mean staff don’t feel comfortable raising issues even if there is a policy.
- Employers should lead by example to demonstrate the desired culture of their workplace to their staff by creating an environment where employees know what appropriate behaviours and treating others with respect looks like.
- Provide training and information for managers so that there are enough people trained to deal sensitively and appropriately with any complaints. If you are a small organization, you could join with other employers who work in the area or an employers’ association to do training together for a reduced cost. You could do the same with the development of your policy and processes.
Many workplaces have policies against bullying, harassment and discrimination, with defined processes to try to resolve these issues internally. The policies usually include definitions of each of the categories and give clear guidance to employers and employees as to what behaviour is not acceptable in the workplace. They also clarify the rights and obligations of both employees and managers. Clear definitions may help to protect employers from overly sensitive employees.
A policy on bullying, discrimination or harassment should:
- clearly state that bullying, discrimination or harassment is never acceptable at any level of the organisation and that all staff are expected to show respect to each other
- be actively supported by the senior managers of the organization, including modelling respectful behaviours themselves at work.
- have a reporting process that is clear and makes it easy for employees to get help. Consulting with employees on the policy and process will help to make sure it is appropriate
- provide support for employees who make a complaint
- make sure that each complaint is investigated sensitively, objectively, thoroughly and in a timely way
- make sure that confidentiality is maintained by all parties involved.
The two aspects of bullying, harassment and discrimination
There are two aspects that need to be considered in relation to possible instances of bullying, harassment and discrimination. This means the process needs to have two parallel streams focusing on each of the people involved:
- the person who the behaviour and actions etc have been directed at (the complainant)
- the person who has been complained about.
- The person who says that the behaviour has been directed at them is called the complainant.
- The manager dealing with the complaint must make sure that the complainant is supported throughout the process. They should offer them access to the organisation’s employee assistance programme where relevant, or offer them access to other counselling.
- If the behaviour is serious, and the complainant’s job means they are coming into contact with the person who has been complained about, it is important to make sure that the complainant is protected. If a decision has been made to suspend the person complained about, while an investigation is done, this will help to protect the complainant. If the behaviour is not considered serious enough to suspend the person while the investigation is being done, then it may be appropriate to move the person to another area during the investigation. The complainant shouldn’t be the person moved (unless they specifically want this) as this may look as if they are being punished for being the victim/saying that they are being bullied. In some instances it may be appropriate to give the complainant time off work (on discretionary leave) if that is what they want, during the investigation.
- Given the sensitive nature of these types of complaints, confidentiality during the investigation and afterwards is very important.
- The manager making the decision about what action to take should take into consideration what the complainant wants to happen. For example, in some more minor instances a complainant might want the matter to be dealt with by the manager having a quiet word that the behaviour is inappropriate (ie deal with the matter informally). How the complainant wants the matter dealt with is not the only factor to consider, and in some instances a manager may decide a much more serious or less serious course of action is appropriate.
- The manager should make sure that the complainant is kept informed, for example, at what stage the investigation process is at, what the decision is about whether there was bullying, harassment or discrimination and, if there was, when the appropriate action has been taken.
The investigation into the complaint will focus on the person being complained about. At the end of the investigation, if a decision is made that there was bullying, harassment or discrimination, disciplinary action for misconduct or serious misconduct may be taken against them. The action taken will depend on the circumstances of the situation and the person. Instances of serious misconduct could result in the person’s dismissal without notice. This person’s privacy and confidentiality should also be protected.
If you see or hear bullying, harassment or discrimination happening to someone at your workplace, you should report it. You can check with the person the behaviour was directed at, or with other people who were there if necessary, to make sure you heard or saw correctly. If you do nothing, this type of behaviour could become, or remain the culture of the workplace.
If an investigation decides that a complaint was made maliciously, and it is found that the bullying, harassment or discrimination did not happen, a misconduct investigation could be held in relation to the person who made the complaint.
Other options for dealing with inappropriate behaviour
Sometimes behaviour which is bullying or harassment, may also be civil harassment covered by the Harassment Act 1997 and the complainant could apply for a restraining order. If behaviour includes violence, is criminal harassment (where the person intends, and knows it is likely, for the harassment to cause the other person to reasonably fear for their own or their family’s safety) or is another criminal offence, it should be reported to the Police.
The New Zealand Police (external link) website explains how to report a crime.
Employees who feel bullied, harassed or discriminated against
Dealing with it yourself
Some employees feel comfortable dealing with a problem themselves. This will depend on the situation and the people involved. You might do this by writing to the person, or by speaking to the person in private, perhaps with a support person present. You should keep a record in case the behaviour happens again.
Dealing with it informally
You could ask your manager (or another manager) to step in informally. In this situation, the managers would get the details of what happened from the you and then try to resolve the matter informally, for example by having a word with the person, telling them their behaviour was inappropriate etc. and asking them not to do it again. The manager would have to be clear on what actually had happened (usually because they saw or heard it themselves), otherwise a proper investigation would need to be carried out in order to be fair to the person accused.
If the behaviour continues, you may choose to make a formal complaint.
Making a formal complaint
- You should find out if there are any relevant workplace policies or processes for reporting and follow these. There may be designated and trained people in your workplace who know how to deal with these issues in a sensitive way.
- If there are no relevant workplace policies or processes, you should still let your employer know as soon as possible. If you aren’t comfortable doing this by yourself you can ask a colleague, friend or your union to support you. It is good to put what happened in writing so that there are no misunderstandings. It is important to be as clear as you can about what happened, including dates and what was said, seen, done etc. If anyone else was there, tell your manager this so that they can ask the person whether they agree with what you are saying happened.
- If you have a preference for what you would like to see happen, you can tell your manager. They will consider your views, but they may decide a different course of action is more appropriate.
- Your manager should tell you:
- whether following an investigation the action was decided to be bullying, harassment or discrimination
- whether action will be taken
- when action has been taken, so that you know that the matter has been dealt with.
If you are not comfortable talking to your manager because of the type of complaint or any other reason, you could go to another manager, HR person, health and safety representative, union or lawyer.
If you aren’t happy with your employer’s response
If you are not happy with the outcome you may go to mediation, bring an action with the Human Rights Commission (in relation to discrimination or racial or sexual harassment) or raise a personal grievance. There are time limits on bringing an action, so don’t delay.
If you want to go to mediation to try to solve the problem, but you're not comfortable talking to your employer first (or anyone else in your organisation) because of the type of behaviour (bullying, harassment or discrimination) or person you are complaining about, you will be able to go directly to mediation.
The Human Rights Commission
The Human Rights Commission provides a free and confidential mediation service. If mediation doesn’t resolve the dispute, the employee can take the dispute to the Director of the Office of Human Rights Proceedings, Human Rights Review Tribunal.
For more information contact the Human Rights Commission:
- Phone: 0800 4 YOUR RIGHTS (0800 496 877)
- Email: email@example.com
- Visit the Human Rights Commission website. (external link)
Receiving a complaint
If you receive a complaint of bullying, harassment or discrimination from an employee you must make sure it is properly investigated.
- Either the complainant employee or the employee being complained about could bring actions against you (or even both) if the complaint isn’t investigated properly.
- The complaint is not always made by the complainant, it can be made by someone who saw or heard the behaviour. Even if the person who the behaviour was directed against doesn’t want to ‘make a fuss’ etc, it should still be investigated as there may be other people who saw or heard the behaviour and even if it isn’t harassment it may still be considered misconduct.
- When you receive a complaint of harassment or discrimination, this could be misconduct or serious misconduct and you should follow the process of investigation and take appropriate action.
- In addition to an employment investigation, serious cases of bullying or sexual harassment may be referred to the Police if the behaviour could be a criminal offence.
- Because of the sensitive nature of these types of allegations you should be careful to keep the investigation as confidential as possible. If the person who has been complained about works closely with the complainant, you may decide that it is appropriate to separate them while you investigate. If you temporarily move the person to a different work location you must make sure that any temporary relocation is not considered to be punishment.
- You could consider suspension of the person being complained about if the matter is serious.
Investigating a complaint
- If you receive a complaint from an employee (or applicant for employment in relation to harassment and discrimination) that they have been bullied, discriminated against or sexually or racially harassed, you must conduct a full investigation of all the relevant facts.
After the investigation
If after the investigation you decide that bullying, harassing or discriminating behaviour did not occur, you might still choose to remind staff what type of behaviour is acceptable/not acceptable in the workplace.
If, after the investigation, you decide that behaviour that occurred was bullying, harassment or discrimination, you:
- may take disciplinary action against the person who did the behaviour
- should continue to support the complainant as appropriate
- should consider whether your workplace policies adequately cover inappropriate behaviours
- should also consider the culture of the area where the behaviours occurred. If the behaviour could be seen as acceptable in that area, you may need to take further steps to change the culture. This could include the training of managers and staff in what sort of behaviour is acceptable or unacceptable. It may be appropriate to consult with the complainant on any changes you are thinking of putting in place
- should try to stop these behaviours from happening again. In relation to sexual and racial harassment, you must take whatever steps are practicable to stop the behaviour happening again. This could, for example, involve limiting their access to certain parts of the workplace, or putting in place some of the suggestions above.