One of your employees comes into your office late on Friday afternoon and plonks themselves down in a chair on the other side of your desk. They look pretty fragile, and you get the sense you’re in for some bad news.
They tell you that Johnny from accounting has been bullying them over the last couple of months. Nothing big and obvious, just insidious and snide stuff here and there. Belittling comments, sometimes in front of other staff and sometimes not. This now weary employee tells you that they’ve had about all they can take and they want you to do something about it.
Then, before you start asking questions, they also tell you that they know that Johnny is super popular amongst the staff and that they’ve always felt more on the outer edges. They don’t want to be named as having complained about Johnny’s conduct for two reasons. First, Johnny’s the kind of guy who could well retaliate by making it worse and by going even more under the radar so it’s hard for anything to be proved. Second, they don’t mind too much about their current outsider status in the business and they like their job, but they don’t want to go from outsider to total outcast if the other staff side with Johnny and think your frail employee is making up stories and being a trouble maker.
You cast your mind back to some guidance you read about bullying in the workplace. You know you have a responsibility to this person for them to feel safe in the workplace. Now that they’ve come to you with this issue you have knowledge of it, so if you are not seen to act reasonably and the person feels so unsafe they leave then you may have a constructive dismissal case on your hands.
Then you remember that disciplinary process can also be tricky. If you take action with Johnny you need to do it with both procedural and substantive fairness. Last time you had a chat with the business’ lawyer about an employment issue, you remember them saying something about how when you are in an investigation and disciplinary process with an employee you have an obligation to provide them with all the information on which your investigation and decision making is or will be based.
Then you pinch your nose and squint your eyes because it’s late on a Friday and you have the feeling that you are (a) being forced between a rock and a hard place and (b) you’re probably not making it out of the office at knocking-off time.
You would be right. You do have obligations towards staff who are being bullied, and you do have obligations to them which flow from them informing you of that bullying.
At the same time you do also have obligations of fairness to Johnny, and he is entitled to natural justice.
So right now just sit there and listen to everything the person on the other side of your desk has to say. Avoid commenting on it all one way or the other. Be careful about your body language so that you don’t give them the impression that everything they are saying is being taken as absolute truth. Also make sure you don’t give the impression you don’t believe a word of it.
Once you’ve heard them out, you’re going to have to tell them that you need to be very careful about what you do from here especially since they’ve told you they don’t want you telling Johnny it was them who complained.
We can’t be there for you in that moment, and it’s something you need to be able to handle before getting any advice about where to next. What do you do next? Well, as with most employment law problems it is probably going to depend on all the facts, some of which you won’t be thinking about yet. That is why you should speak to an employment lawyer as soon as you can so you can talk about what your options might be.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:
Wallace Revell
wrevell@farry.co.nz
09 379 0055 or 03 477 8870
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.