November 7, 2007

Bullied by dragons – boss indifferent


Alan had been employed as the Office Manager by WOEFUL Real Estate. He had done that job very well, the sales of the agency had grown, and after about five months his boss employed the daughter of one of the other sales people as an Office Assistant and asked Alan to gradually ease his way into selling. Alan’s Employment Agreement with WOEFUL was not changed to reflect his new duties. He continued to draw his Office Manager’s salary, but the new Office Assistant did most of the work he used to do. Alan spent more and more of his time chasing new listings and showing prospects the properties on the agency’s books.

Eventually he made a sale – in fact he made three sales. All in one week. All very big ones. Since Alan was not an authorised agent, the boss of WOEFUL signed off the paperwork, but he promised Alan the lions share of the very substantial commissions.

From that moment, things started to turn bad. The Office Assistant and her Salesperson mother both started to harass Alan. Both of them began to find fault with his management of the office and abuse him with personal putdowns. They often swore at him. Alan was a pleasant person who was not particularly assertive. He didn’t know how to deal with the situation, so he just tried harder. He told himself that soon everyone would get used to the new roles and that things would get better. In theory, he was the Office Assistant’s boss, but the roles had become blurred, and now whenever he checked her work she would be very uncooperative, angry and abusive. She would often leave things undone and then blame Alan, calling him a useless wanker, a sad bastard, or a stupid prick and telling him that he was supposed to be the fucking office manager. On these occasions, her mother would often be in the office and she would join in the abuse.

Alan complained to his boss, who told him not to “worry” but did nothing else. Alan started to sleep badly. He became anxious and began to dread going to work to face “the dragons” as he began to call them. The efficiency of the office dropped right away, and Alan had neither the time not the energy for selling. Then his boss also started to make remarks about his competence in the office.

Alan again tried to talk to his boss about the situation. He spoke about the bullying (which was getting worse every day), the problems in managing the Office Assistant and allocating the work to be done in the light of her unwillingness to cooperate and the instructions he had received to “ease his way into selling”. He asked when he would get his share of the big commissions he had been promised.

His boss wasn’t keen to discuss either the commissions or the bullying. He told Alan to “harden up”, and to “wake his ideas up” in relation to the management of the office. He was not willing to discuss Alan’s share of the commission, saying “Times are hard – WOEFUL is running at a loss, and your screwups in the office have lost us more than I made on those sales.”

Alan wasn’t very assertive, but he wasn’t stupid either. He could see the writing on the wall. He wrote the boss a letter complaining about the bullying, pointing out the role confusion and lack of cooperation in the office, and reminding the boss about the promise of a large share of the commissions. He pointed out the stress the situation was causing him, and reported the symptoms he was suffering.

More Trouble
The boss was stupid. Next morning, in front of the Office Assistant and her Salesperson mother and another staff member, he gave Alan a letter. It told him he was suspended, and summoned him to attend a disciplinary meeting two days later to explain his “poor performance as Office Manager”. The boss then told Alan to leave the WOEFUL premises.

Call an Advocate
Alan went home and called me. He was very upset. On top of all the previous trouble, now he had been humiliated in front of other staff, including the ones who had been bullying him. I listened to his story and got him to scan and email the documents, along with a letter appointing me his agent and representative.

We met to discuss the case and the forthcoming disciplinary action. Alan was tearful and shaky. He had had a mild panic attack on the way to our meeting. I sent him off to his GP to have him examined and treated for the anxiety and to get his condition independently assessed and recorded. I asked him to think about what he wanted as an outcome from the situation, and made arrangements to meet with him and his wife.

Workplace Stress
The GP certified Alan as unfit for work for a week as a result of anxiety due to workplace stress and noted that he complained of bullying at work. When I met with Alan and his wife it became very clear that she was in even worse emotional condition than Alan was. She was in no state to cope with a lengthy legal process, and simply wanted to have Alan walk away from the job and from the claim for the commission.

Alan believed he was owed about $45,000 in commissions. He wanted to sell Real Estate, but not for WOEFUL, and he did not want to have further contact with the “dragons”. He knew he was being pushed out of WOEFUL to make way for the Office Assistant to become Office Manager, and because the boss hoped to avoid paying him the $45,000 he was owed. He was determined to stop them “getting away with treating me like that”.

Since Alan had been in the job for for six months his Employment Agreement provided for 5 days of paid sick leave. If he was still unfit for work after that, he would have to apply for a benefit. The family had some savings, but if Alan was to leave the job with WOEFUL, and start a sales career with another company, he would need enough money to support his family for four to six months. He needed an exit package.

Legal situation

Alan had four grounds to raise a Personal Grievance for Unjustified Disadvantage.

The bullying was clear enough, and Alan had complained but the boss had done nothing. Alan had been harmed by the bullying.

WOEFUL had suspended Alan without consultation.

WOEFUL’s notice of disciplinary action was defective and unfair in that it did not specify the matters Alan was to be called to explain. It did not warn him of the possible consequences if the boss found his explanation unsatisfactory, and it did not inform him that he could be supported and represented at the meeting.

Alan was humiliated by being banished from the WOEFUL premises in front of the other staff.

Since Alan had not yet been sacked, he had no basis to raise a grievance for Unjustified Dismissal until he was, but the deficiencies in the process were already such that any dismissal would have been unjustified.

There were all sorts of issues around good faith on the boss’ part, given the timing of the disciplinary notice immediately after Alan had put his concerns in writing. These would (if established) certainly constitute further grounds for a PG for Unjustifiable Disadvantage, and would provide further grounds for a Unjustified Dismissal if Alan were sacked.

The status of the boss’ promise to pay commission, in relation to the instructions to “ease into selling” while still being paid the Office Manager’s salary and WOEFUL’s failure to amend Alan’s original Employment Agreement, was less certain. It could be argued in front of the Employment Relations Authority as a claim for remuneration, but WOEFUL would certainly claim that it was a civil matter in terms of Contract Law between Alan and the boss, and although circumstances supported Alan’s version, there were no independent witnesses as to what had actually been promised. The question of commission payment was certainly going to be important in negotiation.

First Steps
I wrote to WOEFUL notifying a Personal Grievance in relation to the Unjustified Disadvantage for the bullying, the deficient disciplinary process, the suspension without consultation, the humiliation, and the lack of good faith in the whole matter, and suggesting the grievance be remedied by a very substantial settlement. A further paragraph in the letter demanded the share of the commission due, and phrased that matter as an issue of remuneration owing. The final paragraph made it clear that Alan did not want to litigate, and suggested we negotiate a solution.

WOEFUL’s lawyer rang me three days later. We had a “without prejudice discussion in an attempt to find a solution”. Discussions like this are privileged, and cannot be admitted in evidence, so we were able to be really frank with each other and “cut to the chase”.

After some preliminary skirmishing we agreed that WOEFUL would lose a case for Unjustified Disadvantage, and that it wasn’t practical to expect Alan to go back and work there. We acknowledged that the situation in relation to the promise of commission was complex, but we both knew that the boss’ position in relation to the $45 000, owing was shaky, whatever forum we eventually argued it in.

A solution had to be found, and we eventually agreed that a full and final settlement as part of an exit package was appropriate. After many proposals and counterproposals, we eventually negotiated an exit package including a s123(1) (c) (i) payment for hurt and humiliation of $26,000. The bulk of that amount was agreed to in order to have the whole matter settled so that Alan would drop his claim for the $45,000 in commission. The settlement was signed off as full and final by an ERS Mediator. It included a confidentiality clause and a non denigration clause ensuring that neither Alan nor WOEFUL would say anything bad about the other.