Is an intern an employee? According to a recent Employment Relations Authority (ERA) case the answer is yes. This decision, along with a general trend on what is deemed to be work is once again in the spotlight.
After just 6 months into her new job, Katherine McIntyre felt compelled to resign from her Administration Assistant role because of the bullying behaviour of her colleague X (his name and the name of the employer are currently suppressed). She raised a personal grievance claiming constructive dismissal.
Ms McIntyre started work at the (unnamed) Workingman’s Club in May 2021 and very quickly raised concerns about X’s behaviour In the first instance with X directly, but to no avail. She then took the matter to the General Manager, P, but again there was no resolution. A formal complaint was then raised and this was investigated by an independent investigator who concluded that there was bullying. X’s behaviour towards Ms McIntyre included not being welcoming when Ms McIntyre first started, yelling at her unnecessarily on her first day, constantly talking at her with a raised voice, not providing work or training her, ignoring her and withholding information, not saying where to find things and belittled Ms McIntyre when she was seeking to pass on an email and phone message. Ms McIntyre’s visible distress from this X’s behaviour was observed by another person at the Club and reported to the General Manager. It was clear then that the Club would have understood that Ms McIntyre’s mental health was being impacted.
Unfortunately the employer didn’t initially tell Ms McIntyre about the investigation outcome and did nothing to try to resolve the issue. The bullying behaviour continued and in November 2021 Ms McIntyre was placed on sick leave by her doctor for work-related stress.
Ms McIntyre wrote to the General Manager and the Club’s acting committee members while on sick leave saying if they didn’t resolve the bullying issue before her return to work she would have no option but to resign.. Nothing was done other than to suggest Ms McIntyre work from a different location. She declined this saying she felt like she was the one being punished and that it was impracticable for her to work other than at her own workstation.
Three days after returning to work Ms McIntyre resigned, stating in her resignation letter, “…I can no longer work in the hostile and toxic environment that permeates throughout the Club. This is mostly instigated by X’s condescending and belittling ways, not only of me but of other staff members.” She also set out how her health had deteriorated because of the stress and anxiety associated with working in that environment.
The employer’s defence that they tried to resolve the issues but did not have the resources or cash flow to do anything more was not accepted by the Employment Relations Authority. The Authority said the employer breached its duty to provide Ms McIntyre with a safe working environment. Her resignation was caused by that serious breach as no resolution of her concerns was likely.
Ms McIntyre was awarded $30,000 in compensation and $26,465.40 in lost wages. The Employment Relations Authority also exercised its discretion to extend the payment for lost wages of Ms McIntyre beyond the general principle of 3 months because Ms McIntyre was seriously affected by X’s behaviour for several months, which impacted on her ability to seek other work.
The key message in this case is that investigating a complaint is only the first step. An employer must actively try to resolve the issue, and a lack of money is not an acceptable reason for failing to provide a safe workplace. The employer’s duty of good faith is to be ‘active and responsive’, and the Club failed in its duty to Ms McIntyre. Interestingly, the Authority also made a recommendation that the Club consider implementing a policy on bullying and harassment to identify what the next steps would be once the investigation concluded there was bullying.