Should you complain about a colleague, or will it reflect badly on you?
Plenty of workers keep quiet about a colleague because they worry how a complaint will look. A 2022 Kantar Public survey for Te Kāhui Tika Tangata, the Human Rights Commission, found only 24% of workers who'd been harassed or bullied raised a formal complaint. Almost a third told no one.
Equal Employment Opportunities Commissioner Saunoamaali'i Karanina Sumeo gave the reasons when the commission released the findings in August 2022. "Often, workers do not feel empowered to come forward with bullying or harassment complaints for a range of reasons, including feelings of shame, denial, fear of consequences, hopelessness, helplessness, and fear of facing scrutiny and blame," she said.
How to raise it well
WorkSafe defines workplace bullying as "repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm". Its guide for workers places a single incident, reasonable management action and personality clashes that don't escalate outside that definition. Employment New Zealand still says a one-off rude incident "could become more serious and should not be ignored".
Start a record now. WorkSafe advises noting the date, time and place of each incident, what happened, who said what, any witnesses and how you felt. Employment NZ suggests talking to someone you trust first to "sense check" what you're experiencing.
If you feel safe doing it, Employment NZ says you can raise the issue with the person directly, in writing or in private, with a support person if you like. Keep a note of what's agreed. You can also ask your manager to step in informally, or another manager or HR if your manager is the problem.
If the behaviour carries on, find your workplace policy and follow it. Employment NZ says a formal complaint "should trigger a formal investigation" and recommends putting it in writing with dates and what was said, seen or done. WorkSafe publishes a complaint form for workplaces that don't have their own.
Watch the clock. Under section 114 of the Employment Relations Act 2000, most personal grievances must be raised with the employer within 90 days of the action happening or
coming to your notice, whichever is later. Sexual harassment grievances have 12 months. Employment NZ's free early resolution and mediation services (0800 20 90 20) can help before it gets that far.
What the law protects
Employment NZ calls bullying "a serious health and safety breach". Under section 89 of the Health and Safety at Work Act 2015, raising a health and safety concern with your employer is a prohibited reason for adverse conduct, and Employment NZ lists adverse conduct on that ground as a basis for a personal grievance.
The Protected Disclosures (Protection of Whistleblowers) Act 2022 applies where an employee believes on reasonable grounds there's serious wrongdoing, which the Act defines to include "a serious risk to... the health or safety of any individual". Employment NZ says an employer can't retaliate or threaten to retaliate against someone who makes a protected disclosure.
The protection covers honest complaints. Employment NZ notes that if an investigation finds a complaint was malicious and the behaviour didn't happen, the person who made it could face a misconduct investigation.
If you're the manager
Employment NZ says an employer who receives a bullying complaint "must make sure it is properly investigated", and that the complainant, the person complained about, or both could take action if it isn't. It advises against moving the complainant during an investigation unless they ask, because "it may look like they are being punished". Section 4 of the Employment Relations Act requires both sides to be "responsive and communicative".
WorkSafe's principles for handling complaints include acting promptly, protecting everyone involved from victimisation, staying neutral, telling both parties what to expect and how long it will take, and keeping records of informal conversations as well as formal ones.
Two 2023 decisions show what happens when a complaint stalls. In AJY v Chief Executive of the Department of Corrections, Judge Kathryn Beck of the Employment Court found in October 2023 that Corrections acknowledged a formal bullying complaint, then took none of the further steps its own policy required. The court awarded $6,000 for that grievance, within $40,000 in total compensation across the case.
In August 2023 the Employment Relations Authority found KiwiRail had investigated only part of technical officer David Green's bullying complaint. The Authority said the investigation's focus was "an attempt to move on" rather than the complaint, found David unjustifiably disadvantaged and ordered $13,500 in compensation.
For managers, the Corrections judgment names the first move. Every witness for the employer accepted that meeting the complainant to discuss their concerns was "a necessary first step". That meeting never took place.