WorkSafe has stated that its resources are "targeted at the highest risks and harm". It prosecutes about one percent of all matters brought to its attention, with matters relating to bullying being only a small proportion of issues raised with WorkSafe. In the last four years, WorkSafe has been notified of 125 cases of bullying, of which 11 were investigated, and 57 were referred on to another agency or referred back to the PCBU to self-manage. It has never prosecuted anyone for bullying.

WorkSafe will continue to support businesses and workers in dealing with workplace bullying concerns, but it considers that the Employment Relations Authority is often best placed to deal with such issues. Employers have an implied duty to ensure the workplace is safe for its employees. Employers must be proactive in addressing any such behaviour and should take steps to deal with bullying or harassment, regardless of whether or not they have received a formal complaint. A full and fair investigation is often necessary to determine whether or not the allegations are substantiated and if so, to enable to the employer to adequately address the issues. This could include disciplinary action, training, mediation and/or facilitated meetings.

The Employment Relations Act sets out the consequences of failing to deal with bullying and harassment in the workplace. These include penalties for breaches of the Employment Relations Act and the employee’s employment agreement (which includes implied terms), personal grievances for unjustifiable action causing disadvantage, and personal grievances for unjustified dismissal, including constructive dismissal where an employer has failed to act.

In its position statement, WorkSafe points out that the standard of proof in the employment jurisdiction is on the balance of probabilities and so unlike a criminal prosecution under the Health and Safety at Work Act, the elements of the offence do not have to be proven beyond reasonable doubt.

There is no doubt that workplace bullying and harassment is a psychological health risk that can have serious and ongoing impact on affected employees. The position statement confirms that where there is evidence of an employee suffering serious mental harm as a result of bullying or harassment, there is a real risk of prosecution. We consider prosecution is also a real possibility where an investigation finds bullying has occurred and the employer does nothing about it.

However, we expect that where an employer is in the process of addressing issues of bullying, WorkSafe will be reluctant to interfere. In the event the employee is dissatisfied with that process, the employment jurisdiction will continue to be the appropriate place to address those concerns.