WorkSafe privately admits threshold for investigating bullying, harassment is too high

Wednesday, 11 March 2020

NZ Law Society President Kathryn Beck shares the findings of the Workplace Environment Survey commissioned after many women came forward complaining about sexual harassment within the profession. (File video)

WorkSafe has privately admitted its threshold for investigating sexual harassment and bullying in Kiwi workplaces is artificially high and it is forming plans for an overhaul.

The government body in charge of workplace safety called executives from top law firms to a meeting in Wellington in late February to discuss harassment and bullying in the legal profession. Union leaders were also invited to attend.

It's the latest in a series of meetings between WorkSafe and major law firms including Russell McVeagh, Chapman Tripp, Buddle Findlay, Bell Gully, Minter Ellison Rudd Watts, Denton Kensington Swan and Simpson Grierson, with the first meeting held in early August 2018.

The firms were invited to list the changes they had made to address sexual misconduct, bullying and harassment.

* Junior lawyers union started after law industry scandal

* WorkSafe fails to take a prosecution on a single bullying case**

Aotearoa Legal Workers Union co-president Morgan Evans.

* Law Society hit with accusations in the wake of sexual abuse and harassment survey

Stuff understands WorkSafe officials told the meeting there had been a big jump in complaints of bullying and harassment in 2018 after revelations of sexual misconduct at Russell McVeagh. But the agency did not have the resources to investigate, they said.

Russell McVeagh chairman Malcolm Crotty pledged to implement all recommendations in the Bazley report.

In mid-February, Stuff revealed Russell McVeagh had still not completed a list of changes it promised to make after the release of the Dame Margaret Bazley report, looking into allegations of sexual misconduct at the firm, 19 months ago.

The firm claimed an unspecified 'majority' of the changes had been made – claims that were dismissed as 'vague' and a whitewash' by prominent #MeToo advocates in the legal world.

Stuff understands the February 26 meeting was told plans for a stand-alone division within WorkSafe to handle bullying and harassment were in the 'early stages' and the threshold to trigger a workplace investigation was also likely to be lowered.

Documents released under the Official Information Act show WorkSafe management were concerned about its lack of capacity to respond to bullying concerns as far back as 2017.

A memo from November that year to Phil Parkes, now WorkSafe's CEO, said the skills needed to investigate workplace bullying 'are not widespread in the inspectorate', and the response team wanted 'more support'.

Public service troubleshooter Margaret Bazley released her independent review of Russell McVeagh in 2018.

This week, a WorkSafe spokesperson said its role was to 'consider whether the business has managed risks to prevent harm such as bullying, rather than determining whether bullying has happened or not'.

The spokesperson listed the resources and guidance it offered New Zealand businesses, and said it was 'investing in more capability in the psychosocial domain including specialist technical advisors'.

A 'pilot' which would assess the systems employers have in place to 'prevent and respond to psychological harm in their work environments' was in the early stages of planning, the spokesperson said.

It did not answer questions about whether the threshold for investigations would be lowered or whether that was discussed at the meeting.

The spokesperson confirmed WorkSafe would only investigate bullying and harassment if the person making the complaint could prove he or she has sustained 'serious harm' linked to the workplace.

'Serious harm' means a clinical diagnosis of a serious mental health condition.

Morgan Evans, the co-president of the Aotearoa Legal Workers Union, said he was heartened by the suggestion WorkSafe was developing plans to better deal with bullying and harassment.

He said while the legal profession did not often have to deal with traditional workplace safety issues such as accidents, 'there is a huge risk of psychosocial harm'.

'We look forward to working with WorkSafe in this space and we would see lowering the threshold for investigation as a valuable change.'

WorkSafe is one of the places Kiwi workers can go with a complaint of bullying or harassment. Other options include a free mediation service run by the Ministry for Business, Innovation and Employment.

If that does not resolve the issue, they can go to the Employment Relations Authority with their complaint.