A railway track tester has been awarded more than $13,000 in compensation after he lodged a bullying claim against a KiwiRail colleague. Photo / Tracy Neal
A railway track tester has been awarded more than $13,000 in compensation after he lodged a bullying claim against a KiwiRail colleague. Photo / Tracy Neal
“I will punch you in the face if you carry on like that,” the workmate of a KiwiRail track tester is alleged to have said.
Now the state-owned rail organisation has been ordered to pay an upset worker $13,500 in compensation after it failed to comply with its ownharassment and bullying prevention policy.
The Employment Relations Authority has found that David Green, who has worked for KiwiRail for 42 years, was unjustifiably disadvantaged when his employer failed to properly address his concerns that he was bullied by a colleague.
It also found that KiwiRail management’s investigation into the allegations was “infected with an erroneous view” that matters between the two colleagues had been solved when they hadn’t.
“The investigation was problematic from its commencement,” ERA member Rowan Anderson said.
As a result, Green now felt more unsafe in the workplace and was a less trusting person.
Green, who still works for KiwiRail testing tracks around the national rail network on a track evaluation car, was compensated for the hurt, humiliation and loss of dignity suffered as a result of his employer’s unreasonable actions.
Anderson said the impact of those actions, and inactions, was not insignificant and that Green had suffered ill effects, but he was not persuaded that they were of a significant nature that justified an award at the high end.
Green told NZME through his lawyer Matt Belesky that the decision spoke for itself and he was now looking forward to moving on from what had been a difficult time.
KiwiRail's track evaluation car, EM80, on which David Green worked. Photo / KiwiRail
The problem started in 2021 when Green encountered difficulties with another employee with whom he had to work closely.
The matters determined by the ERA related to separate events over the middle of that year, which Green complained were of a bullying nature.
They included allegations that his colleague, known as “Employee A”, yelled abuse and threw items at him, “ranted” about the use of a heater and electric blanket in their accommodation during a work trip, refused to take off his earmuffs when Green tried talking with him, threw a “tantrum” and slammed a car door while swearing, and made a “clucking noise (like a chicken)” when they were driving and Green was waiting to pull out into traffic.
KiwiRail later referred to them as “examples of alleged childish behaviour and verbal abuse” that “appeared to be banter”.
The ERA noted that KiwiRail’s harassment and bullying prevention policy sought to define bullying with examples that included “ignoring” behaviours, verbal abuse and ridiculing.
It also said “unreasonable behaviour” meant different things to each individual, therefore each complaint should be treated on its merits.
Green eventually raised his concerns with management after an incident in August 2021 when he alleged that Employee A threatened to punch him in the face when the pair were travelling from Tauranga to Hamilton.
Green said they often worked in remote locations where cell coverage was erratic at times, and he was not always able to call for help if it was needed.
A meeting was called and Employee A was removed from working with Green in the interim, but the proposed meeting was delayed by Covid-related issues until late September. Proposals were then floated including possible arrangements to form some separation between the two.
Green said he did not agree to anything at that meeting.
After telling management he did not feel safe working with Employee A, he was advised to lodge a written complaint. In October 2021 he outlined matters alleging a pattern of inappropriate and intimidating behaviour by Employee A.
Green said the company had failed in its responsibility to ensure his safety at work, especially when he had continually reported the behaviour by Employee A.
KiwiRail said it would investigate, but then found the specific allegations could not be substantiated.
National resources manager Racheal Fenton said the facts could not be established “beyond reasonable doubt” as it was a “he said, he said” situation, and there were no witnesses.
KiwiRail said the allegations had not been raised through appropriate processes; that no disciplinary action was to be taken; and that it would arrange a facilitated meeting between Green and the other employee to “discuss the way forward”.
Green then raised a personal grievance claiming an unjustifiable disadvantage in his employment for several reasons, including a failure by KiwiRail to conduct a reasonable investigation into his complaints.
He argued that KiwiRail failed to investigate some of his complaints at all, that it erroneously applied a criminal standard of proof when conducting its investigation, and that there were procedural failings in its conduct of the investigation.
He also claimed that KiwiRail failed to comply with its contractual and good faith obligations.
KiwiRail denied the claims and said a “restorative rather than punitive approach” was justifiably taken and that its actions were fair, reasonable and consistent with its good faith obligations and its policies.
It felt that Green ought to have taken up efforts to put the working relationship back on track.
KiwiRail later accepted it made an erroneous reference to the criminal standard of “beyond reasonable doubt” but it had not misframed the complaint or failed to properly inquire into all matters Green had raised.
KiwiRail said its investigation was sufficient to demonstrate substantive fairness and reasonableness. It denied any failing in procedural issues and said a different process would most likely have resulted in the same outcome.
The ERA said that, while it wasn’t satisfied Green had raised allegations of bullying and harassment that occurred before August 2021 in any formal way, that position changed when the formal written complaint was made on October 4, 2021.
“The complaint clearly concerned an alleged ongoing course of behaviour that on any reasonable view might amount to bullying and harassment,” Anderson said.
He accepted that, had KiwiRail investigated Green’s complaint appropriately, it may concludedusion that his claims could not be substantiated.
“However, I am not at all persuaded that would inevitably be the case, given the matters were not investigated at all.”
He ultimately found that KiwiRail had failed to comply with its own harassment and bullying prevention policy and that the focus of the investigation was not Green’s complaint, but an attempt to move on and focus on the ongoing work relationships and communications.
Green and Employee A continued to work for KiwiRail, although no longer alongside each other.
KiwiRail spokesman Andrew Norton told NZME the organisation approached bullying and harassment matters seriously and was always looking to improve its processes.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
