Your rights: Workplace power struggles

Q: My partner has been finding it difficult to work with his manager and has made complaints about him to the area manager. The manager found out about the complaints and started to make my partner feel uncomfortable at work.

He seems to have started a personal vendetta against my partner and has recommended to the area manager that he be demoted.

My partner now goes to physiotherapy for stress-related tension and wants to take a few weeks' sick leave, but is worried he will be demoted or fired.

A: Your partner is stressed about work and it sounds like his manager might be bullying him.

Employees have brought successful claims against their employers for causing them stress. These have included a meter reader who was repeatedly chased by dogs. Also, a high-performing employee with a difficult job, who was given an excessive workload. In that case, the employee suffered burnout and severe coronary artery disease. He was awarded more than $750,000.

Employers have an implied duty to provide a safe workplace. They also have a specific duty under the Health and Safety in Employment Act 1992 to provide a safe workplace free from harm, which includes stress. Case law has established that stress and bullying can amount to a breach of these duties.

Simply not liking someone does not amount to bullying. Managers who were insensitive, blunt and even "loud and aggressive", have been found not to be bullying. Usually, something more is needed, such as putting an employee in a position where they are subject to stressful work conditions even after the employee has complained.

Stress and bullying situations can be expensive for employers. They can result in poor performance, resignations, sick leave and personal grievances. Employers can help prevent this by acting as soon as they become aware of stress or bullying issues.

Employers should stay calm and not get caught up in heated discussions. They can investigate and make adjustments to fix the problem. Employers can offer counselling and job support, adjust the employee's workload or work conditions and discipline other employees who are behaving badly. Any adjustments to the employee's work must be ones that will address the issue properly, if the employer wants to avoid a successful claim.

The Employment Relations Authority's mediation services can be used at an early stage, before things get out of hand.

The workplace might have a policy or procedure for dealing with complaints about colleagues generally, or specifically about stress or bullying. If so, employees can seek resolution under that procedure.

If employees believe their employer has caused them stress, these are their options:

1. A complaint (and possibly a prosecution) under the Health and Safety in Employment Act 1992 for failure to provide a safe place of work.

2. Bring a "personal grievance" in the Employment Relations Authority (which might be resolved through their mediation services) saying they have been unjustifiably disadvantaged at work.

3. Resign and bring a "personal grievance" in the Employment Relations Authority (which might be resolved through their mediation services) saying they have been unjustifiably (constructively) dismissed. A constructive dismissal happens when the employee appears to have resigned voluntarily but in reality has been forced to do so by some unjustified action by the employer.

A personal grievance complaint might succeed in these circumstances:

* The employer has breached its implied duty to take reasonable steps to provide a safe workplace.

* This breach has caused the employee's stress and the stress was reasonably foreseeable and no too 'remote' (i.e. there is a close link between the breach and the stress).

* The employee told the employer about the stress so the employer had a chance to "fix things".

As to being demoted or fired for taking sick leave due to stress, this would certainly give rise to a successful unjustified dismissal claim for your partner.

The expert
Rani Amaranathan is a solicitor in the employment team of the Australasian law firm, Phillips Fox.

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