Harassment
Sexual and racial harassment are both unlawful in New Zealand. Workplace bullying, while not specifically addressed by legislation, is covered under more general provisions, such as the duty to protect the health and safety of and the implied terms of trust and confidence in employment law.
Sexual harassment
The Employment Relations Act 2000 (ERA 2000) protects employees against sexual harassment, making their employer potentially liable if an employee has been sexually harassed during their employment, whether it’s the employer, another employee, or a customer who is the harasser.
The Human Rights Act 1993 (HRA 1993) goes further than the ERA 2000, in that it doesn’t just protect employees from sexual harassment, but other people too. For example, under the HRA 1993, employers may be liable if one of their employees subjects anyone, including customers, volunteers and contractors, to sexual harassment in the course of their work-related contact.
Both the ERA 2000 and the HRA 1993 state that if a complaint of sexual harassment is made to an employer, the employer must investigate the facts and, if they are satisfied that sexual harassment occurred, they must take any reasonably practicable steps to prevent a recurrence of the behaviour.
If the sexually harassing behaviour reoccurs after the employee has made a complaint, and the employer hasn’t taken reasonably practicable steps to avoid a recurrence of the behaviour, the person who made the complaint can take further action (see Complaints process below).
Racial harassment
Racial harassment is also prohibited by the HRA 1993 and the ERA 2000. These Acts make it unlawful to use language, visual material, or behaviour which is hurtful to a person and which expresses hostility against, or ridicules another person on the basis of race, ethnicity, and national origin, where the behaviour has a detrimental effect on the person.
Intention is not a defence. The person who used the words need not intend to offend or create detriment.
To constitute racial harassment, the behaviour must be “repeated” or of “a significant nature”. For example, a minor comment made in the context of a heated argument (where both parties made aggressive remarks to each other) may mean that the minor comment does not meet the required threshold of being of a “significant” nature.
Complaints process
Both Acts enable employees to take legal action against their employer if they believe they have been sexually or racially harassed in their employment.
Under the HRA 1993, the action the employee can take is to make a complaint to the Human Rights Commission (within 12 months). Under the ERA 2000, the action the employee can take is to raise a personal grievance (within 90 days). An employee can take one action or the other, but not both.
If the course of action they chose fails to produce the result they wanted, they cannot pursue the alternative course of action. Where the harassment occurs during an employee’s employment, the most usual course of action is to raise a personal grievance.
Employers should establish procedures for dealing with complaints to maximise the possibility of in-house resolution. There are enormous advantages in resolving complaints in-house. Once complaints are formally laid under the HRA 1993 or the ERA 2000, the employer is faced with the legal and consequent financial liability.
Workplace bullying
The harassment provisions in the HRA 1993 and ERA 2000 only cover harassment that is of a sexual or racial nature only. In many cases there is nothing sexual or racial about bullying.
Bullying is a deliberate attempt by the perpetrator to control and undermine the target, and the target is often chosen regardless of their gender or race. So in many cases, these Acts would be irrelevant to bullying situations.
However, bullying behaviour can still result in action being taken against the employer in the form of a personal grievance or breach of contract claim, or potentially a prosecution under the Health and Safety in Employment Act 1992 (HSEA 1992).
Failure to properly deal with a bullying complaint may give rise to an unjustified disadvantage personal grievance claim.
An employee who resigns because they are being bullied at work may be able to successfully claim constructive dismissal (another type of personal grievance).
Bullying behaviour has been held in employment cases to be a breach of the implied terms of trust and confidence in the employment agreement (breach of contract).
Bullying may put the employee’s health and safety at risk by causing them harm, eg depressive illness. Employers who do not adequately identify and control hazards run the risk of being prosecuted for breaching the HSEA 1992, which states that the term “hazard” includes a situation where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person.
The affected employee may also raise a personal grievance claiming that the employer breached the implied (or explicit, in some employment agreements) duty to provide the employee with a safe working environment.
