A ‘wake-up call’ has been issued to businesses and the health and safety sector. A system that puts the onus on victims to come forward and face an intimidating complaints process needs a fundamental overhaul

After decades of preventable workplace accidents and deaths caused largely by the nation’s ‘she’ll be right’ attitude, New Zealand’s health and safety sector is finally achieving real change.

But there’s still one huge blind spot: bullying and sexual harassment.

While managers and HR professionals know how to fix easily identifiable physical hazards, they’re woefully ill-equipped to deal with more insidious workplace dangers.

This problem is a system stacked against those who want change – and Steph Dyhrberg says it’s not good enough any more.

Speaking at the annual Safeguard conference last Wednesday, the employment lawyer presented ‘Bullying and Harassment: A Wake-Up Call’ alongside WorkSafe chief executive Nicole Rosie.

Dyhrberg pulled no punches, leaving a room full of delegates at the SkyCity Convention Centre blinking and shuffling nervously.

“People in New Zealand spend a hell of a lot of time protecting the reputations of alleged harassers and rapists,” Dyhrberg said. “Not so much time asking ‘are you OK, and if you’re not OK, how can we make you safe?'”

Without naming names, she laid into the industry’s top figures about hypocrisy over their own workplace behaviour.

“Some of the same people who get up and lecture other people about health and safety: I know from the back rooms where most of my legal work is done that some of those people are really horrible to the people who work for them. I’m the one who sits in the room with their junior staffer as they cry.”

Health and safety legislation overwhelmingly focuses on the 50 to 60 deaths caused by acute workplace accidents each year. But exposure to health risks accounts for more than 10 times the number of annual work-related deaths – and anxiety and depression play a big part.

Current systems are designed to minimise physical harm to workers, but invisible risks like bullying, intimidation, sexual harassment and assault aren’t accounted for. Harassment and assault needed to be treated the same as any other workplace risk, Dyhrberg said.

“I would like it if the same passion and attention to detail for innovative new technical systems was applied to sitting down and having really frank and grown up conversations about why we’re horrible to people at work,” she said.

Dyhrberg believes allegations of harassment or assault should trigger a “health and safety response”: “I have a plan, I have a process, I have risk management tools.”

The biggest change of all must be a fundamental shift in responsibility. Most New Zealand workplaces use a process in which the onus is all on the complainant to alert their manager to a problem, make a serious accusation about a colleague, and then follow an exhausting, intimidating and embarrassing complaints procedure all the way to the end.

The whole thing is incredibly fragile: one wobble in confidence and the complainant may decide it’s not worth it. They could then find themselves managed out of their workplace or even blacklisted in the industry. Meanwhile, the perpetrator is free to continue their behaviour unreprimanded.

If someone feels their employer has not taken sufficient action about their complaint, they can take it to WorkSafe where they will be cross-examined on the stand in front of their employer, armed with far more money, power and resources to defend themselves.

“Quite often the way they get treated by their organisation is worse than the original experience,” Dyhrberg said.

Most complaints made to WorkSafe do not resulted in prosecution. Of the roughly 60,000 notifications received per year, the regulator will investigate 300 to 400 and prosecute about 80. In 2018 WorkSafe received around 400 notifications of bullying and harassment cases, and prosecuted none.

Dyhrberg was sexually harassed twice in 2018 and experienced firsthand the overwhelming and intimidating process of reporting it. Having identified the man who harassed her at a law event, she then had to call his organisation to inform them she wanted to make an informal complaint. She set up a meeting with the culprit and his manager herself, where she had to tell him to his face how she interpreted his behaviour that evening and what she wanted him to do differently.

Dyhrberg is a 54-year-old with 26 years of experience in the legal profession, and she couldn’t sleep for 10 nights during that process.

“Even for me, that was tremendously difficult. It was really, really hard, and I am as tough as nails. Don’t underestimate the difficulty there is for people to speak up. You can’t rely on formal complaints. You can’t rely on the poor people who are suffering in all sorts of ways from the experiences they’ve had. You can’t rely on them to be your canary in the coalmine.”

Everyone knows where the “hot spots” are in their workplace. They know who’s unhappy, which departments pull a lot of sick days, which groups of workers are unfriendly to those from different cultures.

Dyhrberg said leaders need to look for gaps in their knowledge, where they don’t have an immediate explanation for why someone’s not happy at work. They need to take the initiative and have a plan in place for addressing what’s going on, without relying on that person coming forward about it themselves.

“It’s not a risk management strategy to keep reminding people to speak up. You don’t wait for a guy to stick his hand in a machine and have his fingers cut off before you think about guarding the machine. We need to be better than that.”

What matters most is behaviour, not intent. As Dyhrberg puts it, “You can have the best values in the world and still be a prick.”

“Having a beautiful policy is fine, but if no one ever uses it, or you go to use it and you make a complete hash of it, or somebody wants to use it but actually you’re really concerned with protecting your brand or the wrong people, then it’s not doing any good whatsoever.”

She said employers need to take charge of scoping out weaknesses in their business where people may be falling through the cracks. Sometimes it might involve conducting independent anonymous surveys, sometimes it might involve blunt conversations with employees.

“It’s awkward and it can be embarrassing and difficult, but don’t let that stop you,” she urged.

Change needs to “start at the start” recruiting decent managers, articulating what they need to do to create a healthy and safe environment, and – crucially – rewarding and incentivising the right things.

“If all you ever focus on is output at any cost, you will destroy a lot of good people,” Dyhrberg said.

Employers are liable for the very first time a staff member is harassed, if it’s found they didn’t do enough to prevent it happening. It’s in their financial interests to create an organisation with clear processes to follow when bad behaviour happens – which it inevitably will.

The health and safety sector is constantly fighting against entrenched conservative beliefs about human error and personal responsibility. Rosie articulated two distinct approaches, known as Safety I and Safety II. Safety I aims to create “perfect safety policies”, so that when issues arise the fault lies not with the workplace but the workers not complying with said policies. Safety II, however, recognises that human beings are inherently flawed, and creates an environment that allows for mistakes to be made and learned from.

The Safety II model helps prevent what Dyhrberg called the “downside of #MeToo”, which sees perpetrators demonised rather than helped to get better. By treating workplace harassment and assault as just another health and safety risk, abusers are reframed not as inexplicable monsters but the result of an imperfect system.

At times there was a slight tension between her message and that of co-presenter Rosie, WorkSafe’s first female CEO. Rosie emphasised the importance of workplaces creating “high-powered teams” who understand each other so well they’ll know when there’s a problem that needs to be solved and how best to do it collaboratively. Her approach seems to delegate much of the responsibility down to teamwork rather than managerial responsibility, which was somewhat undercut by Dyhrberg’s blistering challenge to current leadership.

Dyhrberg, who was named 2018’s Wellingtonian of the Year for her fight against sexism in the legal profession, has a message for male employers who are sceptical about the scale of the problem.

“I get a lot of very genteel, #NotAllMen responses, I get a lot of ‘I’ve never seen or experienced it’. If you’ve never experienced in your working life being sexually harassed, it is going to be very hard for you to imagine it. I’ve never walked on the moon, but I believe Neil Armstrong.”

Rates of sexual harassment and abuse are simply too high for those in power not to believe their employees when they come forward. One in five New Zealand employees have reported being bullied or harassed at work, while in some sectors it’s as many as one in three.

“No sector is free of this behaviour,” Dyhrberg said. “I’ve been talking about this forever, but it’s only in the last 18 months anyone’s wanted to hear me talk about it.”

She also aimed below management level at the kind of everyday workplace misogyny that still hasn’t been stamped out, despite #MeToo’s best efforts.

“Men say ‘you can’t even joke or flirt at work any more’. How about you concentrate on doing your job instead?”

She invites men to try to empathise with their female colleagues and employees, to consider the constant stream of microaggressions that is life as a woman.

“Young women have had enough – being harassed on the street, groped in bars, talked over in meetings. Some sexist remark from a guy at work might be the final straw. Think about how exhausting it is to be a woman.”

There are more options for victims now, with Dyhrberg and Rosie citing Callisto, an American non-profit initiative that began as a tool for college students to report harassment and assault. It’s since expanded to include workplace misdemeanours, and contains a feature which alerts users when someone else lodges a complaint about their abuser.

But New Zealanders are still having to rely on third party tools from other countries to deal with homegrown problems. The fabric of the workplace, where we spend about a third of our time, needs to expand to allow people to feel they’ll be looked after if something’s wrong – not left out in the cold to do it all themselves.

“Formal complaints need new approaches,” Dyhrberg said. “They’re just not working. I’m rethinking all of my received wisdom that has been handed down to me over the years and that I’ve spouted at other people.”

With so much of health and safety’s philosophy being about pushing back against “what’s always been done”, perhaps it’s time for a total recalibration of how we see one of the biggest dangers women face when they walk into work.

As Dyhrberg and Rosie left the stage, the MC invited the audience to “thank the ladies”. The ladies exchanged a glance and laughed it off – there were bigger battles to fight.