A recent case brought to the ERA1 gives a thorough account of the steps taken by an employer when an employee made allegations against a colleague. The allegations were about inappropriate words spoken, and negative interactions in the workplace. Contributing factors were a past personal relationship, workplace frustrations, and possibly mental health challenges from external stresses. Most workplaces will have experienced similar instances of inappropriate behaviour.
In this case, the determination was that the employer met their obligations to the employee and the constructive dismissal claim failed. Every time there was an allegation, the employer listened, looked into what happened, and took appropriate action to look after the person complaining and address matters with the alleged perpetrator. They repeatedly expressed expectations of behaviour, separated the employees as much as possible, used CCTV footage to check whether there was any physical interaction, and discussed possible next steps with the complainant. They could have undertaken a disciplinary process, but in this case they made the decision not to, and that was deemed by the Authority Member to be an option open to the employer in the situation. The ERA Determination states that while the employee understandably felt upset by what had happened, the employer was not required to cocoon her from every unpleasant interaction that might arise in the workplace. Rather, once aware of the inappropriate behaviour, the employer could be expected to act promptly and effectively to address it. The employer’s actions made it clear that certain behaviour would not be tolerated. Throughout the period of time, the employee’s concerns were taken seriously and acted on by the General Manager and, on a day-to-day basis, by the duty managers supervising the workplace.
Our key piece of advice is to make notes about how you respond to complaints made by any employees. Keep track of what you did to investigate, what options you offered to keep the employee safe, and any actions you took to set expectations of behaviour. Note when and how you checked in with the complainant after the event to ensure there has been no continuation, and they are feeling ok. Please be aware that in many situations, the complainant is not entirely innocent, and their own behaviour may be contributing to the negative interactions, so you may also be dealing with counter-allegations.
If you need help to investigate an allegation, or you think the behaviour might amount to misconduct or serious misconduct because of the seriousness of one event, or on-going minor events, please give us a call to discuss. We can also help with coaching to help employees recognise and adjust patterns of behaviour, and with conflict resolution between staff.
1JTK v Murphy’s Law 54 Limited, https://determinations.era.govt.nz/determination/view/19268
Meredith MacKenzie│People & Culture Specialist