Workplace bullying – Part 1

When it comes to the issue of workplace bullying, it is important to know when WorkSafe New Zealand should intervene in the matter and how that intersects with obligations under employment law. This series of articles looks at this question in more detail

In 2021, the most recent year for which complete data is available, WorkSafe New Zealand received over 7,000 reports regarding health and safety concerns.¹ 

These can be broken down into several categories, the most general of which relates to fears about unsafe or potentially unsafe conditions and/or practices. 

In 2021, there were 2,864 concerns received within this category, which is also the context in which issues about mentally healthy work are generally raised. 

Mentally healthy work 

In 2020, WorkSafe established a Mentally Healthy Work team of subject matter experts to provide support and direction in relation to psychosocial hazards. 

In addition, Kaimahi Hauora was created, which is a small team of specialist health inspectors with a dedicated focus on health, including mentally healthy work. 

Notably, in 2021 the Kaimahi Hauora team responded to 134 mentally healthy work concerns — a figure which rose to 229 in 2022. 

These concerns are received via the same channels as other concerns, including the use of a dedicated mentally healthy work form available on the WorkSafe website. 

Whichever route is used to raise a concern, all information is initially handled in the National Response Centre (NRC), which then acknowledges receipt of information, creates an entry in the notification database, and triages the concern to the appropriate team, while indicating a suggested prioritisation category. 

Most mentally healthy work concerns are triaged directly to the Kaimahi Hauora team for review. The Kaimahi Hauora process is guided by a mentally healthy work pathway, which outlines and, as far as possible, standardises the steps taken when responding to concerns. 

All notifications received are reviewed by a multidisciplinary team and are carefully considered to determine what regulatory response is appropriate to the circumstances. 

WorkSafe intervention 

WorkSafe’s operational policy When we intervene² sets out how intervention decisions are made once a health and safety risk or harm has been identified. The policy points out that it is necessary for WorkSafe to make deliberate choices about when and how to intervene, given limited resources and a desire to have the maximum impact on work-related health and safety in New Zealand. 

The intervention criteria identified in this document are: 

• the risk or harm sits within WorkSafe’s area of responsibility; 
• WorkSafe is best placed to intervene if there is an overlap with another agency’s responsibility; 
• the significance of the risk or harm means that it warrants intervention; and 
• intervention is an effective use of resources. 

WorkSafe does not only focus on compliance with the rules, but also works to promote and embed positive health and safety practices across the motu. To do this, it collaborates with businesses, workers, health and safety representatives, industry bodies, and others. 

Its activities go beyond enforcement (which refers to more than prosecution) and into engagement and education to achieve long-term and sustainable change for businesses for the benefit of
all those involved in work. 

WorkSafe does have an enforcement function and, while a breach of duty resulting in psychosocial harm is yet to be prosecuted, a number of Improvement Notices have been issued and responded to by the organisations concerned. 

Such notices require the business to take corrective action within a specified timeframe and can result in financial penalties for a business that does not comply. Notices issued to date have required businesses to improve psychosocial risk monitoring and data recording, develop and update policy portfolios relating to mentally healthy work, review risk reporting systems, etc. So far, all Notices have been complied with.

For clarity, a WorkSafe intervention into a mentally healthy work matter will not: 

• require a person to be disciplined
  or dismissed; 
• prove whether a person is a bully
  (for example); 
• mediate between parties; 
• restore working relationships to a friendly/positive state; 
• provide legal advice or counselling; 
• award compensation; or 
• deal with employment-related matters or discrimination. 

The WorkSafe position statement Supporting mentally healthy work³ sets out what is expected of persons conducting a business or undertaking (PCBUs) in supporting mentally healthy work. 

It provides a definition of mentally healthy work, a clear indication that the Health and Safety at Work Act 2015 (HSWA) requires businesses to provide and maintain a work environment that is without risks to safety and health, and an indication of what WorkSafe will do if it becomes aware of mental health issues. It also states that it is unlikely that WorkSafe will intervene for one-off notifications. 

Many factors are considered when making this decision, including the risk of injury, the seriousness of the harm and the compliance history of the business or undertaking. There is also a clear statement regarding which situations might prompt WorkSafe to consider intervening, these are:  

• multiple events arising at one PCBU; 
• a high level of harm resulting from the failure to manage risks; and/or 
• industry-wide or organisation-wide failings. 

1 Detailed data about the number of notifications made to WorkSafe can be accessed via DataCentre at data.worksafe.govt.nz .

2 When we intervene (WorkSafe, Policy, July2021) worksafe.govt.nz/dmsdocument/43777-when-we-intervene/latest .

3 Supporting mentally healthy work
(WorkSafe, Position Statement, September 2020) worksafe.govt.nz/dmsdocument/32324worksafe-position-on-supporting-mentally-healthy-work/latest  . 

 

This article, written by Duncan Cotterill and Worksafe New Zealand, it was originally published in the first issue of the Lexis Nexis Employment Law Bulletin. If you have any questions about this article, please contact us through our website duncancotterill.com  

Duncan Cotterill is a full-service law firm with offices in Auckland, Wellington, Nelson, Queenstown and Christchurch.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.