Reporting of a strong link between workplace bullying and physical hazards put commercial property maintenance company Goleman Group in an uncomfortable position (Sophie Cornish, Stuff).
Former employees who were affected by the bullying culture spoke out after an abseiler was seriously injured in Wellington.
We don’t know how many of these former employees were party to a Record of Settlement (RoS) that typically include non-disparagement and/or non-disclosure clauses but we feel that workplace safety trumps the purported “sanctity” of a RoS, and it’s not the place of the ERA or Employment Court to suggest otherwise. Where there’s an attempt to hide a hazard with a RoS, then it must be a serious hazard!
Workplace bullying can often be settled with a RoS, and in exchange for a payout the departing employee is expected to avoid disclosing employment relationship problems or otherwise disparaging the former employer.
Because RoS are confidential we have no idea how many have a clause that prohibits the departing employee from reporting a known hazard to WorkSafe.
I have personally heard an Employment Court judge in RPW v H say that a former employee with such a clause in a RoS cannot report a hazard to WorkSafe.
But in industries where hazard management is a significant component of work done (eg: construction and maintenance), allowing a RoS to override the HSWA (2015) would be irresponsible and probably illegal.
Clauses that gag departing employees from reporting physical hazards can be circumvented anyway, as WorkSafe can be tipped off anonymously. When the judge hearing RPW v H was challenged on the legality point, he claimed that the hazard could be reported but the real name of RPW could not be mentioned. That would somewhat defeat the purpose of reporting the hazard as WorkSafe inspectors would not know where to go!
We were able to find one employment dispute where Goleman Group were found to have breached a RoS in 2018:
This is suggestive of a poor culture, as we see from the former employees’ recent reports of “ropes being used more than a year after their designated lifespan”, and claims that the company “supplied ropes that elongated and became stretchy when wet”.
And the Chief Executive said, of the injured worker: “He made a mistake. He has apologised to me for this and feels terrible for potentially damaging the business reputation”. Again, that comment says a lot about the culture of that company.
So while we don’t know how many non-disclosure clauses similar companies have used to keep WorkSafe away, at least Sophie Cornish’s article demonstrates that where they exist, they are not always validated as instruments to cover up unsafe and illegal work practices.