Oceania Health & Safety Officer not Constructively Dismissed

Moira Briscoe was employed as a Health and Safety Adviser within the Human Resources team at Oceania Dairy Ltd. All was well until the arrival of the new Human Resources Manager, Karen Treloar. Within a month of Ms Treloar’s commencement Ms Briscoe was alleging she was being “bullied” by Ms Treloar. 

Ms Briscoe claimed she was being bullied because her desk was moved into a space with the rest of the HR team and she was being “micro-managed” by her new manager. 

Additionally, there was conflict between Ms Briscoe and another HR team member, the Training Coordinator who said they could not work with each other, and the Training Coordinator saying she was thinking of leaving because of Ms Briscoe. 

Oceania met with Ms Briscoe to try to understand what specific behaviour Ms Briscoe maintained was bullying, but they were unable to get any such information. Ms Briscoe then went on sick leave and two weeks later she resigned. Oceania encouraged Ms Briscoe to withdraw her resignation and again asked her for evidence of the issues in order that they could be addressed. Mediation was also offered as an alternative means of resolving matters. 

Despite those suggestions from Oceania, Ms Briscoe maintained her position and the resignation took effect. 

Ms Briscoe filed a claim for constructive dismissal and unjustified disadvantage with the Employment Relations Authority which she lost on both counts. 

When examining the claim of bullying, the Authority member noted the lack of ‘particularity’ to the claim i.e. the lack of specific detail. The evidence the Authority member did review showed Ms Treloar simply sought to manage Ms Briscoe, who was a subordinate. Ms Treloar was entitled to give direction to Ms Briscoe and to require explanation from Ms Briscoe about matters to do with Ms Briscoe’s portfolio. It seems Ms Briscoe had had a relatively free hand during the tenure of the previous HR Manager. The Authority could find no evidence of anything unjustified in Oceania’s behaviour. Indeed, it said Oceania was entitled to manage its staff and individual managers are entitled to develop their individual managing strategies with their direct reports. 

Refreshingly, The Authority member said, “it is not enough just to use the label bullying to make it so.” He said a simple allegation by an employee that they are being bullied must be supported by evidence that that is in fact what is happening. And on the basis of the evidence, the Authority found the conduct Ms Briscoe found difficult to cope with was no more and no less than a manager managing. 

The WorkSafe definition makes it clear, with examples, what is not bullying. Those specific examples include a manager setting high standards because of quality or safety issues; a manager giving an employee constructive feedback and a manager requiring reasonable work instructions to be carried out. 

Key learnings from this case are a reminder that a manager is entitled to manage their subordinates but if an employee raises a concern about bullying, the employer must investigate immediately following the principles below:

• Treat all matters seriously
• Act promptly
• Ensure non-victimisation
• Support all parties
• Be neutral
• Communicate the process and outcomes
• Maintain privacy (confidentiality)
• Keep good documentation 

Please contact one of the team for more specific advice if you hear the word “bullying” in your workplace.