ERA rules KiwiRail's investigation 'problematic'
State-owned rail operator KiwiRail has been found to have unjustifiably disadvantaged an employee after it didn't take the appropriate approach in his complaints of bullying at work.
The Employment Relations Authority (ERA) ruled that KiwiRail "failed to take the appropriate steps" in investigating track tester David Green's safety concerns relating to bullying in the workplace.
Green, who was an employee of KiwiRail for over four decades, reported an incident that took place on August 14, 2021, after his colleague (Employee A) allegedly threatened to punch him in the face.
"I will punch you in the face if you carry on like that," Green recalled as heard by the ERA.
Bullying investigation
KiwiRail commenced an investigation over the August 14 case that ended with Green and Employee A shaking hands and the company proposing options relating to work moving forward.
Green, who said he felt pressured and uncomfortable during the meeting, ultimately did not agree with the proposed actions, and was told to file another written complaint for action to be taken.
The track tester then filed another complaint, adding this time several incidents of bullying by Employee A that took place as early as June 2021.
"He felt there was a pattern of inappropriate and intimidating behaviour by Employee A," the court heard.
KiwiRail responded to Green's complaint saying the incidents cannot be substantiated.
"Whilst your complaint raises the alleged threatening behaviour by [Employee A], the facts cannot be established beyond reasonable doubt as there is a 'he said, he said' situation, and there were no witnesses to the incident," KiwiRail told Green in its response.
"Having considered the information available to us from all parties throughout the investigation process, The (sic) investigation is now concluded and closed with no progression to potential disciplinary outcomes due to the insufficiency of evidence to the allegations."
Green and Employee A continue to remain employed at KiwiRail after the incident, but the former has not been required to work regularly with the latter.
Raising it to the ERA
Green raised the matter to the ERA arguing that he was unjustifiably disadvantaged over KiwiRail's investigation and findings. He also accused his employer of also failing to comply with its own workplace policies, including "Harassment and Bullying Prevention Policy."
KiwiRail, however, maintained that its actions were fair and reasonable.
According to the rail operator, its investigation was sufficient, adding that if there were any procedural issues, the outcome would "highly likely" be the same.
'Problematic' investigation
The ERA sided with Green and agreed he was unjustifiably disadvantaged by his employer.
"Mr. Green was disadvantaged in that KiwiRail failed to take appropriate steps to investigate his safety concerns relating to bullying in the workplace, KiwiRail's failure to comply with its own policies and procedures in dealing with Mr Green's complaint, and KiwiRail's failure to comply with both its contractual and statutory duties of good faith," said ERA member Rowan Anderson in his ruling.
According to Anderson, the rail operator also failed to comply with its own Harassment and Bullying Prevention Policy, pointing out that KiwiRail's investigation had an erroneous view that matters between Green and Employee A had been resolved in its meeting.
"I find that the investigation was problematic from its commencement," said ERA member Rowan Anderson. "Ultimately, the focus of the investigation was not Mr. Green's complaint, but rather an attempt to move on and focus on the ongoing work relationships and communications."
"Whilst, in the right circumstances, that might be considered a positive approach and one that is often appropriate, that approach was taken without dealing with the substance of Mr. Green's complaint."
Anderson also ruled KiwiRail's actions as "procedurally unjustified."
"I find that KiwiRail's actions were procedurally unjustified in that it failed to notify Mr Green that it was not going to investigate his full complaint and its focus on events after 14 August 2021, and in that it failed to provide Mr Green information relevant to its investigation," Anderson said.
KiwiRail is now ordered to pay Green $13,500 as compensation for humility, loss of dignity, and injury to feelings.
Green told NZME through his lawyer that the decision spoke for itself, and he was now looking forward from moving on from the difficult time. He remains an employee of KiwiRail.
Meanwhile, the state-owned operator told NZME that approached bullying and harassment matters seriously, and that it was always looking into improving its processes.
