'I would strongly suggest that employers ensure that they've got the right policies around it', lawyer says
Earlier this month, the Employment Relations Authority (ERA) rejected the reinstatement claim of a psychiatric nurse who was fired by Te Whatu Ora for offensive comments made about a Māori colleague.
Vinod Chand made offensive comments in a Facebook group chat about a colleague in the E Tu Tanekaha Unit, whom the ERA named “D”. The group chat included 16 other members who also worked at the E Tu Tanekaha Unit.
A workplace investigation took place after the comments were leaked to D, and Chand’s comments were found to be cultural and gender discrimination, disparaging of D, and grossly offensive. He was dismissed for serious misconduct on 15 December 2023.
And when Chand submitted a case for unjustified dismissal to the ERA – seeking permanent reinstatement at Te Whatu Ora, which his employer had denied – the ERA sided with the employer.
"Mr. Chand's comment has seriously damaged relationships with third parties, being other employees, including D and S [another member of the group chat], which an order for interim reinstatement is likely to aggravate, at least in the short term," the ERA ruling read.
Two things are required in order to justifiably dismiss an employee following a cyberbullying incident, says Aishleen Sluiters, employment lawyer and partner at Edwards Law.
“One is you need substantive justification,” she told HRD Australia. “The conduct needs to reach the threshold where it seriously undermines the trust and confidence and the employment relationship. And there's a relatively high threshold for termination.”
The second element is a procedurally fair process, Sluiters said.
“You need to ensure you undertake a fair investigation into the issues and you need to provide the employee with the relevant information pertaining to the allegations,” she said. “In terms of a disciplinary process, you should write to the employee, setting out the specific allegations put to them and any supporting information in relation to those allegations that you're relying on. You put them on notice that they can have a support person present and you'd invite them to a meeting.”
It’s also important, within the letter, to would advise the potential outcome of the process, up to and including, for example, termination, she said.
“Then the employee needs to have time to review and take into consideration that information. And then they need an opportunity to respond to the allegations to the employer before a decision’s made.”
Sluiters emphasised the need for employees to be mindful of their conduct on social media and on messaging systems within their company. She went on to highlight that there have been a lot of cases where out of work conduct has been justifiably used to terminate an employee.
“I would strongly suggest that employers ensure that they've got the right policies around it,” Sluiters said. “So the right social media policy, your bullying and harassment policy, you've got terms in your employment agreement. And they all include the fact that there may be times where your conduct outside of outside of the workplace may impact on the workplace.”
The test to determine whether certain behaviour can affect a workplace comes down to the relationship between the conduct and the employment, she said.
“Conduct outside of work that could impact on the employer’s reputation and may impact on the proper performance or discharge of their duties; it may impact on their obligations to other employees; or it may undermine trust and confidence in that employees,” Sluiters said. “Those are circumstances where your conduct outside of work may be assessed by the employer in a disciplinary context.”
When it comes to the complaints process, Sluiters said it not only has to be fair but transparent and accessible to employees.
“Employees need to understand and know about it; know how they report things and where they report them to,” she said. “Because you might have this great process but employees are just not aware. They don't raise their concerns in the appropriate way or they might not even raise them because they don't know the process.”
But what if an employee raises a complaint about bullying but wishes to stay anonymous? Sluiters said it is “problematic from a procedural fairness perspective because the respondent or the alleged bully needs to have all of the relevant information in order to be able to respond.”
“Ensuring the complainant is really aware of the process and the steps and the support that's available can sometimes alleviate those concerns about wanting to be anonymous,” she said. “But if they do want to be anonymous then, generally speaking, a formal process can't be commenced.”
However, employers can take other actions, Sluiters added.
“They can treat it more informally in terms of general refreshers, training,” she said. “There could be implementations of things like an environmental audit where you do a 360 review. That might be a good check for employers to see what's actually happening in the workplace.”
For Sluiters, the major first step for employers is to really understand the concerns raised by the employee when it comes to bullying.
“Really getting to the bottom of what's occurred, what the concerns are, understanding the dates, the specifics because the more information you have, the better you'll be able to assess how to support the person and also what next step is required,” she said.
From there, it’s about ensuring the person that came forward with the complaint understands the process and options that are available to them, Sluiters added.
“It can be quite intimidating to come in and say, ‘I've been bullied’,” she said. “And so if they have all of those full understanding of the process, the options, and you have a really good understanding of what the situation is and what the actual concerns are then that will lead you to be able to best deal with it in terms of identifying what is the best option for addressing the complaint.
“And then the employee will feel more supported and understood through the process as well.”
