The Employment Relations Authority (ERA) is failing the victims of workplace bullying, says CultureSafe NZ director Allan Halse.
Workplace bullying victims are put through a process which treats the issue as an employment matter and not a health and safety one, Halse said.
"The issue of bullying is not an employment matter and the victims of bullying are not getting a fair hearing – it's a total sham," he said. "I'm hoping it doesn't take the prosecution of a suicide case to change New Zealand's laws to recognise that bullying is a criminal act and a health and safety issue."
CultureSafe NZ, a business set up to combat bullying in the workplace which says it is "at least four years ahead of the rest of New Zealand when it comes to addressing the issue of workplace bullying", has asked new Minister of Workplace Relations and Safety Iain Lees-Galloway to provide jurisdiction for its clients who are forced to take their cases to the ERA.
In Australia workplace bullying is a criminal offence with a penalty of up to 10 years in jail.
Known as "Brodie's Law" after the tragic suicide of a young woman who was subjected to relentless bullying at work, it was introduced in June 2011.
It is next to impossible for workplace bullying victims to win an ERA case, Halse said.
"Basically, victims who are petrified of the bullying must raise a formal personal grievance with the employer within 90 days of every bullying incident, or in the eyes of the ERA, the bullying never happened," he said.
CultureSafe NZ has refused to work on current cases for this reason.
"It is impossible to win a case with the Employment Relations Authority when evidence is excluded," Halse said. "The ERA by their actions and excluding evidence are actually supporting workplace bullying in New Zealand."
Halse had approached Lees-Galloway but said he had received the response that the new Minister was "too busy".
"This new worker-friendly Government must step up, and not brush the issue of bullying under the mat like National did. They must change the law," he said.
"Our clients automatically lose because the ERA is unable to use the Health and Safety At Work Act 2015 and that's not fair to them from a justice perspective."
Introducing legislation to combat this would increase workplace productivity and foster better working relationships, Halse said.
"Victims deserve justice, and at the moment, there is no justice, no recognition and no action – I'm looking forward to the Minister changing that."
In a statement to the Herald, Minister of Workplace Relations and Safety Iain Lees-Galloway said workplace bullying was a matter the Government took seriously.
"I am advised that the ERA can deal with health and safety matters including workplace bullying if they are raised as part of a personal grievance," he said. "I am confident that the current law allows people to challenge workplace bullying and for perpetrators to be penalised appropriately."
The ERA by their actions and excluding evidence are actually supporting workplace bullying in New Zealand.
One in five people are bullied in the workplace - roughly 400,000 of the population, according to a study by Massey University.
The cost of bullying is currently unquantified in New Zealand, while figures show it equates to $36 billion per year in Australia.
Earlier this year a kindergarten teacher was awarded $98,000 in an ERA case against her former employer. The case was won only because the employer's lawyer forgot to ask for evidence over 90 days old to be excluded.
Information on the employer was redacted in the ERA decision.
"Most people think of health and safety as broken bones and cuts. Psychological and physiological harm probably causes harm to more employees in New Zealand than physical harm," Halse said.
In 2015 the Harmful Digital Communications Bill was introduced making it a criminal offence to intentionally cause harm online, with a penalty of up to two years in jail or a $50,000 fine.
A spokesperson for the Ministry of Business, Innovation and Employment (MBIE) said criminal law and sanctions, including imprisonment and fines, already exist for serious breaches of the Health and Safety at Work Act 2015.
"The Employment Relations Authority works within the bounds of the Employment Relations Act 2000. If an application is lodged with the Authority in the correct format the authority will accept the application, but can then only consider it in terms of its jurisdiction under the Employment Relations Act," spokesperson said.
"If health and safety issues are part of a personal grievance, the authority can and does deal with those matters in terms of the Employment Relations Act as implied terms of an employment agreement.
"Personal grievances in which bullying has been alleged will usually involve a course of conduct which is investigated by the authority. The authority's investigation is focused on the employer's actions and how the employer acted at the time a dismissal or unjustified action occurs."