Supporting low income workers who experience harassment and bullying

Harassment experienced by low income workers has been in the news recently after the experience of Amanda Bailey became public in what has been dubbed ‘ponytail-gate’. Community Law Wellington and Hutt Valley (CLWHV) sees a wide variety of low income workers. They come to us to discuss the broad range of harassment and bullying they experience at work – from physical harassment by customers to severe psychological bullying from co-workers and bosses.

When your primary income relies on interacting with people who are in a more powerful position than you, if they harass you (are “playful” at your expense) it can be a very difficult situation to be in. For people who have the power in  their employment to safely talk back, complain or easily leave the situation, it’s simple to view a ponytail pull as  harmless, but for people who can’t leave or speak up and who feel uncomfortable, harassed or bullied, it’s an awful situation to be in.

Many of our clients feel trapped and believe that rocking the boat will get them into more trouble than it’s worth. They fear that they’ll be blamed for the harassment and bullying, or that speaking up won’t make a difference.  There are legal protections in place but these are not without personal risk – to reputation, to mental health, to livelihood. Clients must make the tough decision whether enforcing their legal right to a safe working environment is worth the personal blow back. But there are some important steps that can be taken to support clients beyond working on their legal case.

Most low income clients are unable to afford a lawyer to support them to raise issues and negotiate on their behalf before formal legal action begins (and legal aid becomes available). At this preliminary stage, we think it is crucial to support clients to help themselves. At Community Law, we encourage clients to bring a support person to meet with us. The client can take their support person along to a meeting with an employer, and we can help them both prepare. We can assist clients to write up the points they want to raise and ensure they have all the relevant information to give to their employer.

By the stage low income workers are seeking legal support it is often too late for them to join a union. But a union is a great option for preventing legal issues from arising in the future as they are able to provide early support, paid for via union fees. Explaining the right to join a union and the support a union provides can be very helpful to low income clients. If there isn’t a union in the work place, talk to different unions about options for establishing a union.

After a low income worker loses their job or feels forced to resign, they can have difficulties supporting themselves day-to-day and dealing with Work and Income. Leaving your job in a constructive dismissal type situation is not easy to do at the best of times, but becomes more difficult if you are on a low income and aren’t necessarily in a strong financial position. Work and Income can be there to fill the gap. However, if a client leaves a job for ‘no good reason’ or is dismissed due to misconduct, then Work and Income will put them on a 13 week stand down. A constructive dismissal may appear to Work and Income as if the client is leaving for no good reason. To help a client in this situation, write a letter to Work and Income setting out the facts, whether there are legal grounds to raise a personal grievance for constructive dismissal and advise whether the client intends to raise a personal grievance or pursue other legal action. This can allow Work and Income to reduce the 13 week stand down to 1-2 weeks stand down. Encourage clients to apply for benefits early, as the application date can affect when they will begin receiving any benefits they are eligible for.

Finally, simply knowing that harassing and bullying behaviour can result in legal action gives a lot of clients hope. The simple act of listening and letting them know there are protections available can be a source of immense comfort.

The proposed new legislation, the Health and Safety Reform Bill, seeks to expand protections for all sorts of workers. This legislation is based on an Australian model, which appears to provide remedies for severely bullied workers or their families.

Brodie was an Australian waitress who was severely bullied by her manager and co-workers. She had sauce dumped all over her and was often belittled. The owner of the café was aware of this and had told the manager to tone down the behaviour in front of customers – but never stepped in to prevent it. In 2006, Brodie jumped from her apartment and died 3 days later from her injuries. Her co-workers and manager were fined between $10k and $45k, and the company was fined $220k after pleading guilty to failing to take reasonable care for the health and safety of persons and failing to provide and maintain a safe working environment.

While Brodie’s case was a tragedy, it does illustrate the ability of health and safety legislation to take bullying very seriously and recognise the potential harm it represents. We hope this legislation will help ensure employers have an even stronger incentive to take bullying and harassment seriously and protect their workers from such destructive work environments. The ability for an outside organisation to undertake prosecution, Worksafe, can help some workers feel better about coming forward.

It is important to recognise the extremely vulnerable position low income workers who experience harassment and bullying are in, and provide the necessary support to ensure workers are can make their own decisions to protect themselves or take action.

By Kate Scarlet, Community Lawyer