23 Aug Conflict in the Workplace
Employer’s obligations when they receive anonymous complaints about conduct of other staff members.
There are undoubtedly a number of books, blogs and pages on the inter-web that can tell employers how to create a lovely harmonious workplace. However, the reality is still that employees do not all have the same values, beliefs, experiences or upbringing. We each bring our own special brand in to the melting pot workplace environment. Some people are more resilient than others and process interactions or events at work differently. Therefore, the majority of the time it can come down to luck and possibly whether the stars are aligned to determine if you are going to achieve a harmonious employment relations on a daily basis.
Generally speaking, not many employees like conflict in the workplace but likewise in our less than perfect world, not all employees will gel with each other 100% of the time. Invariably the actions of one will rub another up the wrong way and motivate them to want to do something about it.
Therefore, with the stars out of alignment you may possibly arrive at work one day to find a plain sealed envelope on your desk, containing a typed complaint purportedly from one employee about another employee. Alternatively, you might have a teary employee walk into your office, close the door and dump a jumble of information on you about their work colleague. They tell you they want something done but they do not want the alleged perpetrator to know that it was them making the complaint. They want their complaint to be…anonymous.
What to do, What to do and your Obligations
1: Be Fair and Reasonable
The primary test that you will ultimately be judged against in the employment jurisdiction is, did you act as a fair and reasonable employer in the circumstances. [s103A Employment Relations Act 2000]
Keeping fairness and reasonableness in mind, and not just your views of these concepts, it is also worth reflecting on how others might view what you are doing.
The beautiful nature of employment relations is that each situation turns on its own facts and circumstances. As we are dealing with relationships the type of industry workplace, business type environment, and what type of people manager you are, have relevance.
With your open minded, fair and reasonable hat on, you would firstly do a basic assessment of the information. No knee jerk reactions.
Whistle blower
If there is reporting of conduct by a “whistle-blower” that presents as serious wrongdoing, (unlawful, corrupt or irregular use of public money or resources; conduct that poses a serious risk to public health, safety, the environment or the maintenance of the law; any criminal offence; gross negligence or mismanagement by public officials) you need to be aware that you may be dealing with a protected disclosure, made pursuant to the Protected Disclosures Act 2000.
The Protected Disclosures Act provides that a person is immune from civil, criminal, or disciplinary proceedings for making a protected disclosure, or for referring one to an appropriate authority. [section 18]
Your obligation under this Act is not to retaliate against the employee as they would then have grounds to raise a personal grievance. [section 17]
It is also unlawful under the Human Rights Act 1993 to treat whistle-blowers or potential whistle-blowers less favourably than others in the same or similar circumstances. If a whistle-blower is victimised in the workplace they may be able to claim legal remedies in the Human Rights Tribunal. [Section 66]
If you receive a protected disclosure, you are obliged to use your best endeavours not to disclose the identity of the employee, unless one of the exceptions in the Act applies. [s19]
The exceptions are if the employee consent to disclosure of their identity or if disclosure is essential:
- to the effective investigation of the allegations.
- to prevent serious risk to public health or safety, or the environment.
- to comply with the principles of natural justice.
Accordingly, even though you may have a protected disclosure on your hands, if keeping the identity of the complaint confidential impacts on your ability to conduct an effective investigation then anonymity still may not be an option.
Unfortunately, this is where it starts to get more tricky. You now have knowledge of a potential risk in the workplace. You have parallel obligations in play. Your primary care obligation under the Health and Safety at Work Act 2015 is to provide and maintain a work environment that is without risks to health and safety [s 36] and your obligations to be fair and reasonable.
In terms of the unsigned anonymous complaint letter on your desk, as the employer, unless the person identifies themselves there is not much you can do formally with that piece of paper. It may give you an insight that you had not had before and it may give you some ideas on tweaks you can make in the workplace, such as additional training or edits to company policy. But you are limited in proactively doing more with this type of anonymous complaint.
In certain workplaces you may be able to engage your powers of deduction and work out who wrote the complaint. If you can establish the author, then you are now in the similar position to the employer who has an employee that wants to remain anonymous.
Employees may want to remain anonymous for a number of reasons. They may be worried about saying something, because they think it might hurt their career or they might be ostracised in the workplace for being the office “nark” or moaner or they might suffer retaliatory behaviour.
Part of your fairness and reasonable obligation would be to discreetly meet with the complainant. Keep an inquisitive but open mind.
Some employees may just want to off load and feel that they have been listened to. Others may be out for blood.
You will need to recognise that the employee is likely to be emotional and therefore you do need to choose your words wisely. Employees may hear/interpret what you are saying in a different way to what you are intending. You may nod and they think you are agreeing with them, when your nod is merely acknowledge you understand what they are saying.
In line with your good faith obligation [s4 Employment Relations Act] you will need to be open and honest with the complainant that they will need to put their complaint in writing with as much detail as possible and that it cannot be anonymous for you to be able to deal with it in a disciplinary forum.
The various reasons a complaint cannot be anonymous are because of your fairness, reasonableness and good faith obligations you are required to be communicative and provide the alleged perpetrator with access to information and an opportunity to comment on that information. [s4 ERA] Additionally, there is a natural justice obligation in the mix as well.
Anonymous statements are not seen as giving the alleged perpetrator a fair and reasonable opportunity to prepare and respond during a disciplinary process.
The employee is entitled to know who is making the allegation or sometimes who the eyewitnesses are. The employee is entitled to challenge the reliability of the complaints made against them and even the motives of the informants, which is why disclosure is important.
In Campbell v the Commission of Salford School [2015] NZEmpC 122 Judge Corkill found at 266 that it was a significant procedural flaw for the School not to disclose the identity of some complainants because their opinions were consistent with others opinions whose identities were disclosed. He said that Ms Campbell “did not have the opportunity of considering the basis of the opinions made by the individuals who sought confidentiality”. The additional problem was that it was found that the confidential opinions influenced the decision makers conclusions and a “fair and reasonable employer could not rely on conclusions influenced by such information” [292]
The determination in Dallas v Wellington Newspapers Ltd [1998] 2 ERNZ 456 (EmpC), established that the employee who is being accused of misconduct is entitled to be given “full information” about what they are being accused of.
Full information would logically include dates, times, places, names of people involved and what is claimed is being said or done.
If the complaint is in writing, break it down into parts. Is there more information you need to be able to decide what to do from there? Commonly a complainant will say it happens “every day” or “all the time”, which can be an exaggeration if two employees have at least 40 days annual holidays between them and at least 10 days sick leave per annum, that is around 50 work days each year the parties do not see each other.
Once you have more details you will at this point be making an assessment as to where to from here.
The employee who has potentially endured a lot and is very emotional may not, once you have explained your obligations to be fair and reasonable to both parties, be very appreciative of your “fairness” and natural justice notions. They may tell you that they do not want the matter to go any further; that they do not want the person to lose their job; and they just want the behaviour to stop.
You would be wise to offer access to counselling support to the employee, potentially look at implementing training for a group of employees that could resolve the issue and making sure that you are taking reasonable steps to keep the complaint safe.
Consequence of Failing to Disclose Identity
The case of Brown v Bob Owens Retirement Village Ltd [2013] NZERA Auckland 526 is an example of where the employer’s investigation was found to be inadequate. In this case the employer had received verbal complaints from six staff about what Ms Brown (no relation) was doing in the workplace, such as hitting a resident and breaking equipment. All six wanted to remain anonymous.
The employer investigated the possibility of collusion between the complainants but was satisfied that collusion had not occurred as there was no particular evidence of a common motive to collude against Ms Brown. As the complainants’ statements had been verbal, management staff committed the complaints to writing.
Ms Brown was provided with a summary of the investigation. The summary outlined that staff members had made statements about Ms Brown’s behaviour and demonstrated that the dates that Ms Brown had worked were consistent with when the incidents allegedly happened.
The summary also referred to the staff being too scared to put their name to a complaint for fear of retribution.
Subsequently, Ms Brown’s employment was terminated, in reliance on the anonymous complaints.
Ms Brown raised a grievance claiming that without the names of the complainants, the employer had merely relied on the gossip of her colleagues and had not spoken to residents to establish what had actually happened.
The Authority found that the lack of specificity surrounding every allegation meant that it was not possible for Ms Brown to properly defend herself against the allegations. It considered that for Ms Brown to have been able to respond, there “must be a degree or particularity which identifies on a time and date bases at the very least what is supposed to have happened and to whom.”
Internal Policies
Aside from your statutory obligations there is also the obligation to abide by your organisation’s policies and procedures if you have them.
360 degree reviews
If you have a performance management policy that allows for 360 degree reviews to be carried out. It is worth realising that they are premised on the provision of anonymous feedback. You would need to exercise caution with this HR tool as it could be considered anonymous complaints en masse.
In the recent case of Henderson v Nelson Marlborough District Health Board [2015] NZERA Christchurch 166, the Employer used a 360 degree review as a performance management tool after there had been complaints about an employee. The employer’s policy gave managers the discretion to use their own performance management tools and format. The member pointed out this freedom “does not absolve managers from ensuring that the format they use is fair and transparent and does not effectively ambush the employee [para 70] and that these reviews run the risk of being seen as soliciting complaints, turning into a “free for all”. [84].
Exceptions – Secret Witnesses
In most situations the identity of the complainant and informants will be material, unless it falls into the exceptional category of there being a good reason for maintaining confidentiality [s4(1B)(c) ERA].
In Wikaira v Hokianga Health Enterprises Trust ERA Auckland AA123/05, 8 April 2005. The Authority considered the public interest in preserving a flow of information about the observance or not of those rights and obligations and concluded that there was good reason for withholding the identity of vulnerable witnesses. [27 -28]
When discussing this exceptional category in Porter v The Board of Trustees of Westlake Girls’ High School [1998] 1 ERNZ 377 (EmpC) The Court qualified that even if there was good reason, it was still incumbent on the employer to have ensured that the process was fair in all other respects.
There is also the scenario of an employee bringing conduct to your attention and you were then able to obtain conclusive CCTV footage of the conduct. There may be not be need to identify the person who brought the information to your attention.
In Richard v Winstone Wallboards Ltd ERA Auckland AA168/07, 8 June 2007, the employer had declined to divulge the identities of two employees who had witnessed the incident in question. The Authority determined that the main consideration, regarding whether or not the employee should have been told of the informants’ identities, was whether or not he was prejudiced in any way by not knowing their identities. The Authority concluded that, from the evidence before it (which included a photograph of the incident), the employee was fully aware of the allegations against him and, even without knowing specifically the identities of the two staff concerned, he and his representative were in a position to raise any concerns they had regarding any purported malicious motivation by the anonymous informants. In all the circumstances the Authority found that the employee had not been disadvantaged and suffered no prejudice as a result of not knowing the informants’ identities.
Summary
Complaints from one staff member about another are an inherently sticky situation to work through, fraught with numerous pitfalls and personalities.
It is unlikely that you will be able to justify taking any action against an employee in reliance on anonymous statements without an exceptionally good reason, that does not put the alleged perpetrator at a disadvantage.
If you get into this situation, after your initial assessment of the situation, you may also want to consider whether it is appropriate to appoint an independent investigator to investigate the facts.