• Sarah Bond
    62
    I just learned a lesson in being timely because I found Peter's 3 question thread had been closed. However, I've been mulling over this topic for a while, and finally got around to writing down my thoughts.

    Q3 Steph Dyhrberg says H&S practitioners need to acknowledge sexual harassment and bullying as legitimate workplace hazards to be dealt with. Do you agree? Why, or why not?

    Wow! This question really challenged me. As an HR and HSE consultant, I often joke about how I’ve got a pair of high heels and steel caps under my desk, as I never know if I am going to be heading towards a Boardroom or smoko shack.

    Yes, I absolutely believe that sexual harassment and bullying is a legitimate workplace hazard that can result in illnesses with a legitimate medical diagnosis. There is a need to investigate the ‘hazard identified’ and work out how to manage the ‘hazard’ (person in question) and even consider involving the Police. This is all clearly defined under HSWA 2015 and the Crimes Act 1961.

    However, such behaviour would also result in the need for a disciplinary procedure that would hopefully be defined under in Employment Agreements, Employee Handbooks and a general Code of Conduct. The challenge is that the ERA 2000 which has been shaped by Contract/Common Law and the desire to ‘act in good faith’ which is different to HSE’s criminally based statues.

    To me the real challenge when you get a clash of methodologies (HSE, HR & Employment Law), you can find that:
    1. By conducting an HSE / ICAM investigation an organisation can commit a procedural ‘own goal’ and end up facing a Personal Grievance or claim for Unjustifiable Dismissal.
    2. By conducting an HR disciplinary procedure, the focus can on apportioning blame and not resolving systemic issues that allowed the situation to occur in the first place.
    3. Any formal investigation (regardless of the methodology) can traumatise the target and divide the company culture.

    So, what’s the answer? Apart from the usual “every situation is different and needs to be dealt with on a case by case basis,’ my preferred way of dealing with it is:

    1. Be proactive: “That’s not how we do things around here” type training and individual coaching.
    2. Have Bullying/Sexual harassment definitions and reference to company policies in your Critical Risk Register, Employment Agreements, Employee handbook and Code of Conduct. This needs to include a defined process for making a complaint and let everyone know about it.
    3. Always take a complaint of bullying/harassment seriously and make sure that the target is made aware of all their options for dealing with the problem (both formal and informal processes).
    4. Always offer EAP/Workplace Support to all parties involved.
    5. Keep accurate records (even if the response is informal).
    6. If you are going to conduct a formal investigation it is better to get a suitably qualified external investigator. For businesses that I work closely with I have preferred external investigators (usually lawyers) and I focus on making sure that everyone has a chance to be heard with dignity and supported throughout the process.

    I’m really interested to see what everyone else has to say and how you go about dealing with the issue.
  • Jan Hall
    40
    Absolutely it's a workplace hazard. Sexual harassment IS a form of workplace bullying.

    I have a policy and procedure for it which pretty closely follows your 6 points above except that my clients undertake to have a formal external investigation also if either party involved requests it. My preferred external investigator is a forensic engineer.
  • Andrew
    395
    I couldnt tell you how many of these I've been involved in - other than loads. There is no clash between your OSH and your HR.

    OP is correct: There may be a risk that an employee is harassed etc by another. This is at the macro level. You dont need to identify people in the process. Managing the risk can be a joint exercise between OSH and HR with no clash of methodologies. Because you are doing "the right thing" not the "compliance thing"

    When things go wrong it ends up highly technical. I wouldn't want your average OSH person near it.

    For a start its not a disciplinary procedure. Its an investigation procedure. Out of that, there may be consequences.

    Made all the more tricky by the Metoo movement where there is a shift towards "presumed guilty"
  • Peter Bateman
    270
    WorkSafe NZ has just today released a guide to sexual harassment - you wouldn't have seen that from the regulator five years ago!
  • Ian Bensemann
    5
    Absolutley no place for any of it in the workplace and I really like your question as to which is the most appropriate 'system' to use.
    I dont want to sound simplistic but if you use an HSE system you may end up with a PG, but then if you use an HR system you may fail to manage a hazard - dammed if you do and dammed if you dont.
    I'm inclined to agree with Andrew that it may be best not to have an HSE / OSH person involved as some (not all) may not have the sensitivity, empathy and other people skills that are necessary when dealing with such situations and may not have awareness of the HR requirements.
    Provocative question - is it possible to seperate 'people and behaviour' out of OSH / HSE even though the behaviours have the potential to cause 'harm' which we do need to recognise as a hazard.
    Broadly speaking the OSH / HSE view is that anyone could be affected by the identified hazard, but with sexual harrassment / bullying it is frequently specific to an individual.
    Does having a SWM, JSA or PPE reduce or prevent injury from sexual harrassment or bullying ?perhaps the answer to that question gives a good indicator as to where the matterrest and what department is the most appropriate to manage the issue.
  • Simon Lawrence
    110
    I've visited this thread a few times and although I detest the use of intimidation and dominance on any person, workplace or not, I've hesitated to comment. Mainly because the sexual harassment side of it is so highly charged these days. Almost any male or non-specialist opinion may be viewed very critically, whether or not it's deserved.

    But I'm not sure these types of behaviour really fit into health and safety. Sure, you can have policies, but if, for example physical violence occurs in the workplace, we don't rush over to the hazard register to take notes. Of course it's a hazard, but these things are against the law. I mean, if we employ drivers, we don't put "Drive on the left and stop at red lights" on the hazard register, do we? And the prospect of the average OHS person dealing with these issues makes me shudder. Even HR folks are challenged.

    I can't help thinking intimidation should be referred to very specialised people, same as we refer incipient occupational diseases. The role of people "on the ground" probably ought to be prevention and early reporting. And surely some cases of intimidation are criminal offences? What do we do with those? The Labour Party recently kept it "in-house" at the summer camp thing and suffered the consequences. Not sure if this is an OHS vs. HR thing when it's best to refer it "upstairs", wherever that may be.
  • Rob McLean
    2
    How should a company deal with narcissistic bullying?
  • Sheri Greenwell
    340
    This thread epitomizes a key point that challenges every organisation, whether from the HR perspective or the H&S perspective - human nature and the myriad factors that influence human behaviour. What might be perfectly acceptable within one group of people might not fit so easily in another context. Some people are flexible and adaptable, while others think the world should march to their own tune. The vast extent of variability is probably the biggest reason HR and Safety have largely tiptoed around human behaviour for so long and focused much more on concrete and more defined elements such as management systems, equipment and machinery, buildings, etc. Even trying to adopt a strictly politically correct culture will ultimately fail to deliver all things to all people at all times, and it also does nothing to teach resilience and self-determination.
  • Rob McLean
    2
    I happen to know of a large NZ owned company who dealt with a workplace bullying issue by getting rid of the victim. Not even HR knew how to deal with it. It was escalated to senior management to close it down. They did this by engaging in bullying tactics against the victim.
    Is this behaviour typical of large NZ owned companies? I would like to think not. But l seem to have read a few other stories where the victim is the person who ends up losing their job.
  • Andrew
    395
    Just before christmas I had a complaint from a woman. Apparently another woman was wearing a singlet and revealing far too much flesh and she felt the nearby men folk would become sexually stimulated and that this would then become a problem. Obviously there are a lot of layers to this complaint.

    I am someone who does have "Bullying / Harassment" in my risk register. Seems obvious to me - there is a risk of either physical or mental harm coming from such behavior at work so it needs to be managed. That said, it is considered "low Risk" due to the management steps that are in place.

    This year I have updated the resources and made available to all staff this document from Worksafe "Preventing and responding to bullying at work" - available here: https://worksafe.govt.nz/dmsdocument/782-preventing-and-responding-to-bullying-at-work

    I particularly like it because it has this definition " repeated and unreasonable behavior directed towards a worker or a group of workers that can lead to physical or psychological harm.".

    The reason I like this definition is that for it to apply there is an extremely good chance there will be evidence - and managing these situations is so much better / easier if it is done on an evidential basis.

    Kudos to Worksafe. I'm too lazy to go reinventing the wheel - I am finding I can just use their new resources as my base material. If its good enough for Worksafe, its good enough for me.
  • Andrew
    395
    Rob, be aware a lot of cancerous gossip often ripples out from these situations. Unless one is "intimately" involved outsiders will never get the full story - nor is it their business. The word "victim" is one we need to use cautiously.
  • Sarah Bond
    62
    I ask my client's to use the term target (or alleged target). It's more neutral, tries to stay out of the victim/persecutor model, attempts to focus on the behaviour rather than labelling the individual and I've found it a better term to use when working with the person who has been accused of doing the behaviour.
  • MattD2
    338
    I particularly like it because it has this definition " repeated and unreasonable behavior directed towards a worker or a group of workers that can lead to physical or psychological harm.".Andrew
    Agree that having this definition is the best start - as taking you example it can clearly be shown that the women wearing the singlet is in no way bullying or harnessing as there was no behavior directed towards a worker or group the could lead to harm... however if the person that was making the complaint was to repetitively comment or show their displeasure with what the women wears then that could definitely be considered as bullying/harassment
  • Andrew
    395
    In my view "repetitively commenting and showing displeasure" does not constitute "harm' and therefore the complainant does not have a leg to stand on.

    Now, if I want to get really technical I can go back and look at the definition of a hazard, and the consequent definition of "harm" which is "cause death, injury, or illness to a person". Or in other words harm that's is identifiable / diagnosable by a qualified medical practitioner.

    Sometimes we have Moaning Minnies and we just need to head them off at the pass.
  • Chris Peace
    84
    I agree with pretty much all of the above. But nobody cited the definition of health in the Health and Safety at Work Act. It "means physical and mental health".
    So, anything that could cause mental ill-health must be dealt with under section 36(3)(a) "... work environment that is without risks to health ...". Given the allegations about misconduct in Parliament I wonder if the MPs and officials who wrote the Act thought about that. Sexual harassment and abuse can result in lifelong harm, just as much as physical trauma.
    In the first semester I'm teaching Principles of Health and Safety Management at Victoria University (part of the new MA in OHS programme) and have asked a Health Psychologist colleague to talk during the Block Course about mental health and its place in OHS management.
    PS. Professor Joanne Crawford, the WorkSafe Professor of OHS arrived this week. Yay!!!
  • MattD2
    338
    Well there are various levels of "repetitively commenting and showing displeasure" (and I guess I should have been more precise) and if it was at the level of "slut-shaming" to the point of it negatively affecting the person's mental health then it could be considered as bullying/harassment.
  • MattD2
    338
    Given the allegations about misconduct in Parliament I wonder if the MPs and officials who wrote the Act thought about that.Chris Peace
    What hope is there for the rest of us if those that are in charge of writing the laws can't even understand them enough to follow them :wink:
  • Andrew
    395

    I think (but am not sure) you are raising a secondary issue.

    And that is - can a complainants behaviour be harassment. The answer is of course "yes" - providing it meets the "harm" definition

    And Chris - very pleased to hear you are getting a Psychologist in for this part of your course. So many people seem to think "Oh my bum was pinched and I'm pissed off and thus sexually abused" constitutes harm for which the perpetrator needs to be hung, drawn and quartered ( or fired from job at least)
  • Lucille N
    10
    The Psychosocial hazards in work environments and effective approaches for managing them was published in April 2019 by Work Safe. Bullying and sexual harrassment is most certainly a hazard. It is a useful document to read and includes success factors for workplace bullying interventions, https://worksafe.govt.nz/dmsdocument/5417-psychosocial-hazards-in-work-environments-and-effective-approaches-for-managing-them
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