Has inclusiveness in the workplace increased resistance?

ELM: Workplace bullying, unlawful discrimination and harassment are hot on the agendas of HR teams across New Zealand Phillipa; in your experience, what has led to this and what are some recent case examples where the issue has hit the spotlight?

PHILLIPA: There are likely to be many reasons for this. Individuals and society as a whole have become more aware of these types of issues and the importance of communicating with their colleagues when these issues arise.  In the new digital era with social media and the like, the methods by which we can communicate continue to grow. There are many benefits as a result, but these developments also open the door for other methods of potentially unfair treatment e.g. cyber bullying, which can occur both during and outside work hours.

There have been several recent decisions that have considered these issues, for example Bashir v Ladbrook Law Limited [2016] NZERA Auckland 73 (claims of bullying and racial harassment), Green v Mitech Limited [2016] NZERA Auckland 101 (claims of unlawful discrimination and bullying), Adams t/a Untouchable Hair & Skin v Brown [2015] NZEmpC 77 (claims of bullying) and H v A Ltd [2014] NZEmpC 189 (a sexual harassment claim).

ELM: What can we learn from these case examples and what are you advising employers do to better protect themselves and minimise risks relating to these types of claims?

PHILLIPA: These cases (and many others) have demonstrated that investigations into these types of allegations are coming under increased scrutiny by the Authority and Court.  Getting the process wrong can mean an employer’s decision could potentially be found to be unjustifiable.  Therefore, a thorough investigation is usually needed before disciplinary action can be contemplated. 

Although each case is different, when dealing with these types of complaints, I commonly advise employers to:

  • Ensure comprehensive policies and training are in place;
  • When a complaint is made, provide a neutral, timely and professional response;
  • Take complaints seriously;
  • Provide both parties with an opportunity to explain their view of events;
  • Observe natural justice principles;
  • Keep parties informed of any progress;
  • Preserve confidentiality;
  • Ensure support options are identified and offered;
  • Maintain appropriate record-keeping; and
  • Ensure complaints have been appropriately followed-up.

ELM: What other toxic behaviours are you seeing employers deal with in their workplaces, and why do you think these have unfortunately become more common?

PHILLIPA: One example has arisen following the drive that many employers have initiated for a culture shift toward ensuring inclusiveness in the workplace, particularly for the LGBTI community.  This shift has been very positive, however there is often some resistance to change.  As a result, the behaviours and remarks (for example, calling someone or something “gay”) that may not have been considered “toxic” 50 years ago, would now be considered inappropriate and may need to be addressed.

ELM: When discussing these topics with clients, as well as when you present about them at the upcoming conference HR Law Masterclass Series in New Zealand, what are some key take aways you hope have sunk in?

PHILLIPA: Some of my key take away messages include:

  • Workplace complaints should be investigated and managed in a timely manner- to avoid unnecessary delays;
  • Investigations must be conducted fairly and thoroughly, particularly where the employer has substantial resources at its disposal;
  • The importance of confidentiality must be emphasised to all individuals involved in the complaint from the outset (if necessary, ask these individuals to sign a confidentiality agreement);
  • Consider what steps need to be taken to protect both parties and the business;
  • Keep an open mind;
  • Provide support as required pending the outcome of the investigation, without taking sides;
  • Interview all relevant individuals using a consistent approach; be firm in questioning but avoid harsh interrogation;
  • Ensure that outcomes are fair and consistent with past practices; and
  • Continue to provide ongoing training and awareness-raising in the workplace.


About Phillipa Muir:

Phillipa is a partner and heads the employment law group at Simpson Grierson. She acts for many of New Zealand’s major corporations, tertiary institutions, and local government bodies. Phillipa has successfully argued several leading cases in new areas of employment law. These include the first major damages claim brought by an employer against a union, the first successful stress damages case to go to the Court of Appeal, and the first employment law case to go to New Zealand’s Supreme Court.
Phillipa is also listed as one of the top employment lawyers in New Zealand and will be presenting at the upcoming conference on HR Law in Auckland, with her colleague Samantha Turner presenting in Wellington.