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Safeguard Magazine

Unacknowledged hazards

STEPH DYHRBERG says Dame Margaret Bazley’s report is a wake-up call for H&S practitioners and employers to finally acknowledge sexual harassment and bullying as hazards.

For the past decade or so, employment lawyers have been spending increasing parts of their working day dealing with the fallout of New Zealand’s horrendous culture of bullying. What none of us wanted to admit is that our own profession is riddled with bullying too. And now, unless they are living in a state of denial, lawyers are being forced to confront the fact sexual harassment is also rife in our profession.

The story of allegations of serious sexual harassment and assaults at Russell McVeagh in the summer of 2016 finally surfaced in the media in February 2018. The firm commissioned Dame Margaret Bazley to undertake a wide ranging independent review of the events, the firm’s handling of the situation and the culture of the firm.

Her report, which landed in early July, highlighted a culture many lawyers will recognise from their own workplaces, or places they worked in their youth: an over-abundance of poorly supervised and boozy functions, sexism, power imbalances, lacklustre leadership, inadequate HR policies and processes, and shocking work-life balance.

Dame Margaret was dismayed to discover that, as well as sexual misconduct, there were stories of bullying and bad treatment of staff. She made a raft of recommendations to tear down the culture and re-build it.

WATERSHED MOMENT

None of us should have been surprised by these revelations; surveys and research papers had already brought these problems and their causes to the surface. But, distressing though this time is for the people directly involved, it is proving an invaluable watershed moment.

No profession, no employer, should be sitting back, secure in the assumption that bullying and harassment are confined to commercial law firms, or to the legal profession. From studies and statistics, blogs, surveys, the #metoo campaign, employment case law and the anecdotal stories of many, many people, sexual harassment and bullying are all too common in New Zealand workplaces.

It is an accepted fact that the effects of bullying and harassment on the victims of this behaviour can be catastrophic. Every study, every guideline, every policy starts by telling us what the conduct is, and then tells us how damaging the behaviours are. Effects include shattered self-confidence, difficulty sleeping and eating, absenteeism, high turnover, poor performance, physical and mental health symptoms, depression and anxiety, even suicide.

HAZARDS UNRECOGNISED

Why then is there so little focus by WorkSafe and the health and safety community on bullying, and almost none on sexual harassment, as workplace hazards? WorkSafe at least acknowledges bullying as a serious workplace hazard. In the absence of a statutory definition or specific steps for addressing bullying, the 2017 guidelines Preventing and Responding to Bullying at Work are practically our Bible. The guidelines make it very clear that PCBUs have legal obligations to take all reasonably practicable steps to prevent bullying, to minimise harm, to take complaints seriously and to investigate. But WorkSafe does not take its own responsibility as regulator seriously. It has investigated relatively few complaints of bullying, and has never prosecuted any of them.

Sexual harassment is invisible to the health and safety community, starting with WorkSafe. In a search for the phrase “sexual harassment” on the WorkSafe website, the Employment Relations Act definition is the only result. There are only fleeting mentions of sexual harassment or assault in the bullying guidelines. Yet all of the damaging effects experienced by victims of bullying are experienced by the survivors of sexual harassment and assault. It’s worse. The victims of bullying are far less likely to feel deep shame, to be made to feel it was their fault, or what they were wearing, or that they led the bully on, or it was only a joke, or they should feel flattered. Victims of bullying are much more likely to make formal complaints, to raise personal grievances, to be supported and be able to stay in their job than the survivors of sexual harassment.

REGULATORY FAILURE

WorkSafe will not even investigate allegations of sexual assault in the workplace. I have this in writing. When my EA rang WorkSafe to ask who to send a complaint to, she was astounded to be told that sexual assault wasn’t regarded as warranting a complaint to WorkSafe, much less an investigation. It has been explained to me that “other agencies deal with sexual harassment”.

This is just unacceptable, and smacks of gender discrimination (because unlike other workplace harm, sexual harassment predominantly happens to women). Just because the Human Rights Commission, Employment Relations Authority and potentially Police have jurisdiction to consider complaints of sexual assault and harassment does not absolve WorkSafe of the obligation to carry out its statutory function in relation to a serious workplace hazard. The Transport Accident Investigation Commission, Police and CAA have jurisdiction over various workplace accidents or near misses, but that doesn’t stop WorkSafe investigating and prosecuting breaches of the Health and Safety at Work Act. I will be discussing my concerns with WorkSafe soon.

EDUCATE YOURSELVES!

Health and safety professionals need to educate themselves and categorise bullying and sexual harassment as the hazards they are: serious, pervasive, and capable of causing serious harm. Together with their HR colleagues, they need to ensure PCBUs (directors and senior management) are well aware of the legal and business risks to the organisation if these hazards are not sufficiently addressed.

All of the legal requirements – Human Rights, H&S, employment – place significant emphasis on prevention: taking all reasonably practicable steps to create a safe workplace culture. Too much emphasis is being given to making it easier for victims to speak up, or saying “we can’t do anything without a formal complaint”. Balderdash. We, as employment, human resources and health and safety professionals, need to step up and make sure we do all we can to:

  • • 
    educate and upskill ourselves, managers and staff;
  • • 
    role model exemplary behaviour;
  • • 
    provide excellent policies, processes and support; and
  • • 
    where necessary, investigate and hold people accountable.

There are many resources and experts around to help us do our job of making New Zealand workplaces safe, inclusive, productive and enjoyable places for the people who work in them. Let’s do this.

Steph Dyhrberg is a partner with Dyhrberg Drayton Employment Law and is convenor of the Wellington Women Lawyers’ Association.

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