J was employed by the department of Corrections and managed of six probation officers. R was J’s manager. In January 2007 another employee H made a complaint to R that she was being bullied by J (stick with me it gets easier!). H was not willing to sign a complaint or agree to a copy of the complaint being given to J.
J was advised there was a bullying complaint. He was to go on leave while R investigated the matter.
R asked H to suggest other employees he could talk to. R concluded from these interviews that there were no instances of bullying but there was a general theme of staff feeling unsupported. He decided no formal inquiry was necessary but J should be told of his conclusions and some professional development should be undertaken.
R then spoke with H and told her his conclusions. He also told the other employees he had interviewed.
When J returned, he was informed of R’s conclusions. J emailed R and asked for details of the allegations made and copies of the interviews. He was concerned that the background to staff comments had not been investigated, the conclusions had been reached without giving him the chance to comment on the statements made by staff, and that R had not interviewed staff who would have provided positive comments for a ‘more balanced perspective’.
He argued that he had been unjustifiably disadvantaged by R’s actions.
J had to show he had in fact been disadvantaged .This can mean a monetary disadvantage but also relate to the “total environment” of the employment. Secondly he had to show that the disadvantage was unjustified in that it would not be what a fair and reasonable employer would have done in the circumstances.
The ERA concluded J was disadvantaged when R told other employees that J’s management style needed improvement without first having heard from J himself. R’s actions were inconsistent with the employer’s general duty of trust, confidence and fair dealing.
Remedies and compensation can be awarded for unjustified disadvantage, but all J wanted was an ‘acknowledgement’ of wrongdoing and an apology. The ERA cannot award an apology, but said that R had already made acknowledgement and apologized in an earlier letter so no remedies were awarded.
Employers – if you get a complaint from one employee about another employee this is definitely one time you need to go and see your lawyer.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team. Contact her by clicking here
