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 decision making about whether to pursue a formal or
informal resolution is in the control of the person/s
speaking up, in certain limited circumstances (e.g.
where the matter is so serious) the Ministry may be
obliged to move directly to a formal process.
4. Informal resolution
4.1 Informal resolution may take place firstly in
the form of self-help if the complainant feels
able to deal with the problem themselves
or otherwise chooses another method of
resolution that stops short of making a
formal complaint. Informal resolution may
allow the complainant to control the process,
it keeps the problem at a less formal level
and it gives the respondent an opportunity to
correct their behaviour.
4.2 Your options for informal resolution include:
• Advising the person that their behaviour
is offensive and asking them to stop.
• Writing to the person about their
behaviour, requesting a change and
advising that a complaint may be made if
the behaviour does not stop.
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• Discussing the behavior directly with the
person in conjunction with a third party
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(as set out in 1.1 of these guidelines)
to reach an agreement about future
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behaviour. You should seek HR advice
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when setting up such a meeting to ensure
that it is appropriately facilitated and the
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participants are well-supported.
• Alternatively if you do not want to attend
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the meeting with the person who is
causing you concern, then you can meet
rt
with your manager or a third party (as set
out in 1.1 of these guidelines) to inform
de
them of the problem, and they can meet
with and put the allegation to the person,
i.e. the respondent.
un
• If there is agreement on what happened
and what needs to be done to fix the
situation, the issue can be resolved,
d
confidentially, between the parties.
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• If an informal resolution is not possible,
i.e. due to denial of the allegation, or if the
ea
complainant or respondent requests, then
a formal investigation may be appropriate
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and carried out.
4.3 Informal resolution may not be appropriate
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if the complainant anticipates any form
of reprisal, if the alleged unacceptable
behaviour is serious or continuous, or if it
concerns someone in authority. Informal
resolution is unlikely to be appropriate where
the behaviour is potentially criminal, e.g.
sexual assault, threats of violence, or actual
violence.
4.4 It is important that any person involved in
an informal resolution process takes care
to ensure they feel safe and supported in
the process. Accordingly, either party is to
be free to withdraw from the process at any
point.
4.5 If others have experienced the same
82
behaviour, you and your colleagues might
be able to take a joint approach.
19
t
A guide to talk to the person whose
Ac
behaviour is concerning you
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• Tell a third party what you are doing (set
io
out in clause 1.1 of these guidelines).
• Select the best time and place to
at
approach the person.
• Consider taking a representative with you.
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• Acknowledge that you have something
difficult to talk about. Always use the
fo appropriate language and be respectful
– behave as you would like others to
behave.
• When you talk directly to the person
whose behaviour is concerning you, focus
on specific incidents. Describe the specific
behaviour(s) that is causing you concern
or distress. Often asking for it to stop will
be sufficient.
• Explain why the behaviour is unwelcome
and how it made you feel – don’t target
the person, just the behaviour. Keep
your language neutral, try to see their
viewpoint, but don’t excuse the behaviour
e.g. when you did… I felt…
• Be clear about what you would like to
change, in what ways the behaviour
should be different.
• State clearly what you will do if the
behaviour continues.
• At the end summarise clearly what was
discussed and agreed to. A good way
to do this is in an email to the person
concerned.
• Afterwards keep a confidential record of
the date, time, location and the details of
your conversation.
4.6 If informal resolution has not worked or is
not appropriate, a formal complaint can be
made.
9
 5. Making a formal complaint
5.1 If informal resolution is not the
complainant’s preferred option, or is
inappropriate given the severity of the
issue/s, or fails to resolve the problem, and
a staff member wishes to proceed with a
formal complaint, the following process
applies.
5.2 Complaints can be verbal or in writing to
those noted in section 1.1 of these guidelines.
Alternatively, a formal complaint can be
raised by completing the form (Annexes
A or B of these guidelines). This form can
be emailed to speakup@mfat.govt.nz or
alternatively any of the contacts listed in
section 1.1 of these guidelines.
5.3 The complainant should set out clearly
what happened including any details of
time, date and what was said and done.
The complaint should also note the names
of any potential witnesses. The complaint
can also indicate how the complainant
would like the situation to be resolved. The
person who was advised of the complaint
needs to ensure that the complainant has
appropriate support in this process.
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6. Assessment of the complaint
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6.1 The person who receives the complaint
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ensures HR advice is sought on how to deal
with the complaint. A determination will be
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made as part of this assessment as to who
the decision maker will be, based on the
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facts and circumstances of the particular
case.
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6.2 The following should be considered on a
case by case basis.
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• Does the complaint on its face fall
within the definitions of Unacceptable
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Behaviour as set out in the policy?
• Are there immediate actions that
need to be taken to ensure the safety
d
of either party while the matter is
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resolved? (e.g. shift in work area,
agreed leave, working from home,
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suspension).
• What does the complainant want to do
and what is a satisfactory process in the
el
circumstances?
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• Are the actions complained of
potentially criminal in nature?
• Would the conduct, if proven, constitute
misconduct or serious conduct?
• Is it being raised as a protected
disclosure? (see AUR protected
disclosures policy).
10
6.3 The next actions may include:
• Assessing the process for when and
how the complaint is raised with the
respondent;
• Recommending that a facilitation or
mediation process be undertaken to
assist the parties to resolve the issues
82
between them instead of proceeding to
an investigation;
19
• Informal resolution;
• Conducting an investigation, and
whether that should be a disciplinary
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investigation.
7. Investigation Process
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7.1 The Ministry will follow the procedures set
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out in the Disciplinary Policy adapted for
the nature of the particular complaint and
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the circumstances as assessed at the time.
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8. Complaint substantiated
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8.1 Where a complaint is substantiated,
the Ministry will take all practicable
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steps to ensure that the unacceptable
behaviour ceases immediately and that the
complainant is informed of the next steps,
and is protected from any consequences of
having made the complaint. The Ministry’s
disciplinary process may be initiated if
the report concludes that unacceptable
behaviour has occurred.
8.2 The decision maker is to designate an
appropriate person to check, at a later
date, that the behaviour has in fact
stopped. In the event that steps are not
taken to prevent repetition of bullying/
harassment, then the staff member may
have grounds for a personal grievance or
to lodge a complaint to the Human Rights
Commission.
9. Complaint not substantiated
9.1 In the event that the person accused of the
unacceptable behaviour is cleared of the
allegations or there is insufficient evidence
of unacceptable behaviour they will be:
• advised in writing; and
• advised that the letter and other notes
relating to the allegation will not be
placed on their personal file, subject to
the obligations of the Public Records
Act 2005.
 The complainant must be informed of the
outcome. There may still need to be action
taken to improve workplace relationships,
e.g. facilitated meeting between the parties,
counselling or coaching.
10. False complaint
In the event that the complaint is unsubstantiated
and is determined to be intentionally false by the
decision maker, the complainant may be subject to a
disciplinary process.
11. Other options
Staff may choose to have their complaint dealt with
by an appropriate external agency – the Human
Rights Commission, the Police, WorkSafe NZ, or the
Ministry of Business, Innovation and Employment’s
Mediation Services, depending on the nature of the
situation.  with other policies and obligations.
12. Roles and responsibilities
Everyone at the Ministry has a part to play in
facilitating the good-faith identification and
management of unacceptable behaviours in
the Ministry so that these can be appropriately
addressed.
al
The Senior Leadership Team are responsible for:
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• Demonstrating personal leadership,
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commitment and behaviours to the Ministry’s
approach not to tolerate unacceptable
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behaviours in the workplace.
• The development and promotion of an
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organisational culture necessary to positively
support this policy.
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• The identification and removal of organisational
work practices, policies, structures or
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requirements that result in or lead to the
perpetuation of unacceptable behaviour.
un
• Ensuring people leaders are fully trained
in identifying and preventing unacceptable
behaviour.
d
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Managers at all levels are responsible for:
• Responding appropriately to observed
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inappropriate behaviours.
• Demonstrating personal leadership and
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commitment to the Ministry’s approach not
to tolerate unacceptable behaviours in the
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workplace, and building awareness of this.
• Monitoring the work environments they manage
to ensure they are free from unacceptable
behaviours; this extends to monitoring the work
environment of peers.
• Treating complaints seriously, taking
appropriate action, and seeking advice where
necessary.
Staff are responsible for:
• Responding appropriately to observed
inappropriate behaviour.
82
• Ensuring that their behaviour is not offensive
or harmful to others. Anyone who believes they
19
or someone else at work is being subjected to
unacceptable behaviour should take immediate
and appropriate steps to raise it.
t
Human Resources is responsible for:
Ac
• Ensuring there are guidelines in place for
appropriately addressing allegations of
n
unacceptable behaviour which are legally
compliant, respectful of the parties involved,
io
maintain confidentiality and are in alignment
at
• Ensuring there are appropriate systems and
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processes in place to address instances of
unacceptable behaviour. This includes recording
fo
complaints received of unacceptable behaviour,
and assessing data periodically to assess
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whether there are any trends or common
themes relating to unacceptable behaviour that
should be brought to the attention of senior
leaders.
• Increasing awareness and understanding of
the underlying issues with training or other
interventions.
• Providing professional advice on complaints.
• Where appropriate, providing support to
managers, complainants and respondents.
• Maintaining the network of Confidential
Advisers.
• Maintaining this policy.
Speak Up Advisers:
• Recognising the global span of our working
environment, our network of Speak Up Advisers
is a Ministry-specific initiative designed to
respond to the difficulties staff may face in
discussing sensitive matters, particularly in
smaller or more isolated locations.
• Speak Up Advisers are responsible for ensuring
that matters raised with them are handled in
line with this and other relevant policies and
guidelines.
• Speak Up Advisers are expected to ensure that
they maintain awareness of relevant policies
and procedures, and consult as necessary and
in particular with HR for matters of process and
procedure.
11
 • Speak Up Advisers are expected to respond
promptly to matters raised with them, and
exercise tact, discretion and sensitivity in
carrying out their responsibilities.
• Speak Up Advisers are not expected to act on
behalf of staff or to act as an intermediary.
12. Resources
Worksafe New Zealand Guidance and Tools
Worksafe New Zealand has published guidelines and
resources that will be of particular interest both to
managers seeking to eliminate workplace bullying
and staff who feel that they are being targeted.
• Preventing and Responding to Bullying at
Work – Good Practice Guidelines
This is a comprehensive guide on how to
minimise and deal with bullying at work. It
was last updated in March 2017.
Download the Preventing and responding
to bullying at work good practice guide
[PDF 2.3MB]
• Bullying at work: Advice for workers
This quick guide shows what bullying at
work can look like, and what you can do
al
if you think you are being bullied, or are
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accused of being a bully.
ffi
Download the Bullying at work: Advice for
workers quick guide [PDF 603KB]
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• Preventing and responding to bullying at
work: Advice for small businesses
This quick guide outlines what you could
do to minimise the likelihood of bullying at
your workplace and the harm arising from it
if bullying does occur.
82
Download the Preventing and responding
to bullying at work: Advice for small
businesses quick guide [PDF 543KB]
19
• Bullying: Workplace assessment form
This assessment form was developed
t
Ac
by the New South Wales Government
WorkCover and amended for New Zealand
use. It can be used to assess how well your
business prevents and responds to bullying
n
at work.
io
Download the Workplace assessment form
at
[PDF 110KB]
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• Examples of what bullying at work is and
what it is not
fo
Find out what you can do about bullying at
work
In
• For more information refer to the Worksafe
website
http://www.worksafe.govt.nz/worksafe/
toolshed/bullying-prevention-toolbox#
Human Resources
6 September 2018
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 - The obligations on employers in
the Health and Safety at Work Act
2015 to eliminate hazards. Hazards
include people’s behaviour that may
cause harm. Behaviour which may
cause harm includes Workplace
Bullying, including physical or
5.4. Acceptable behaviour includes:
• Issuing reasonable instructions and
expecting them to be carried out;
• Routine staff management and staff
performance management, including
insisting on a high standard of work,

82
psychological harm; providing constructive feedback and
requiring performance improvement;
• Other legislation such as:

19
• Expressing opinions that are different
- The Human Rights Act 1993;
from others;
- The Harassment Act 1997;
• Free and frank respectful discussion

t
- The Crimes Act 1961; about issues or concerns in the

Ac
workplace.
- The Protected Disclosures Act
2000;
6. Resolution Processes

n
- The Harmful Digital

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Communications Act 2015. 6.1. If you consider that you have been
subjected to or witnessed unacceptable

at
• Relevant provisions of employment behaviour you have a range of options
agreements. to consider. These options include the

• Other relevant Ministry policies.
4.2. Examples of behaviour that is consistent
with the Ministry’s values include:
In
• Being inclusive and working
collaboratively;
al
rm
following:
• Seek the advice or assistance of a
fo Speak Up Adviser. The Ministry has
created a network of Speak Up Advisers
for those who consider they have been
subjected to or witnessed unacceptable

• Treating colleagues professionally and behaviour. They are able to listen to

listening to and considering their views; your concerns and advise on options for
ci

addressing your concerns.

• Being courteous and friendly to one
ffi

another; • You directly and informally approaching

the person whose behaviour you
O

• Communicating constructively on areas

consider unacceptable.
they disagree on or question;
he

• Speaking to your manager or your

• Managers clearly setting out their
Group Business Manager.
expectations on work assignment
rt

and discussing with staff when their • Speaking to a Ministry HR team

expectations are not met. representative, Ministry Audit staff
de

member, another Ministry manager,

4.3. Accordingly the Ministry expects all staff to
employee, union representative or a
behave in a manner that is consistent with
lawyer.
un

the above.
• Making a formal complaint against
5. Definition of Unacceptable Behaviour a manager, co-worker or contractor
d

who you consider has behaved

5.1. “Unacceptable behaviour” is behaviour unacceptably. Formal complaints are
se

that breaches the obligations noted in our usually dealt with by the process in the
Policy Statement above. Disciplinary Policy.
ea

5.2. Unacceptable behaviour can occur: • Making a Protected Disclosure. The

• Between staff at any and all levels in the Protected Disclosures Act 2000 only
el

Ministry; applies to disclosures of ‘serious

wrongdoing’.
R

• Between consenting or non-consenting

staff;
• In dealing with stakeholders,
contractors or members of the public.
5.3. Unacceptable behaviour does not include
one-off or occasional instances of
forgetfulness, rudeness or tactlessness.

21
 6.2. Ministry employment agreements have
processes for resolving Employment
Relationship Problems. See clause 20
of the Ministry of Foreign Affairs and
Trade Collective Agreement and the
Third Schedule of our standard Individual
Employment Agreement. An ‘Employment

82
Relationship Problem’ includes, but is not
limited to a Personal Grievance under the
Employment Relations Act 2000.

19
6.3. The primary problem-solving mechanism
under the Employment Relations Act 2000

t
for resolving Employment Relationship

Ac
Problems is MBIE provided mediation.
6.4. Complaints regarding sexual or racial
harassment can be the subject of a

n
personal grievance under the Employment

io
Relations Act or a complaint to the Human
Rights Commission under the Human

at
Rights Act 1993 – but not both.

rm
6.5. Staff employed at post have their own
provisions for resolving disputes and
disagreements.
6.6. If you have been subjected to what you fo
In
consider to be criminal behaviour, you
should contact the police. This does
al

not preclude you taking the other steps

outlined above.
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 8. The confidentiality of all parties involved
will be maintained. Details of the matter will
only be known by those directly concerned.
Investigation
Where it is alleged that an employee has engaged in
misconduct or serious misconduct that requires an
investigation to be carried out, the Ministry will set
out in writing to the staff member:
a) The nature of the allegation(s) and whether
the alleged misconduct is potentially
serious;
b) Advise that the allegations will be
investigated;
c) Advise as to who the investigator and
decision maker are to be (if known);
d) Advise as to the seriousness of the
allegation(s) and the possible disciplinary
action that may be taken if the allegation(s)
are found to have been substantiated;
e) Notify the staff member of their right to
seek advice and/or representation from
their union, lawyer or other representative
at any meetings forming a part of the
investigation process;
al
f) Provide documentation that may be
relevant to the allegation(s).
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Terms of reference would usually be drafted for each
ffi
investigation, in most cases by HR in consultation with
the decision maker. Parties involved will usually have
O
the opportunity to comment on the terms of reference
before they are finalised. An investigation process
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will also require a manager to determine who holds
the appropriate level of delegated authority to make
rt
any decisions arising out of the investigation. An
investigation report does not recommend disciplinary
de
action but makes factual findings. Any factual findings
are to be on the balance of probabilities and the
evidence supporting any misconduct must be as
un
convincing as the allegations are serious. If required
in the terms of reference, an investigation report may
also highlight whether the findings may potentially
d
breach or not comply with the employee’s terms of
se
employment, the Ministry’s Code of Conduct or any
other relevant policy.
ea
Investigator
el
1. The Ministry will appoint an investigator,
who can be either Ministry employee or
R
an investigator external to the Ministry
depending on the circumstances. In
most cases the process to appoint an
investigator will be facilitated by HR.
2. The investigator will undertake a fair
investigation into the alleged facts giving
rise to the allegations against the staff
member. This will usually include:
• Gathering and assessing relevant
documents and/or;
• Interviewing people who may
have information relevant to the
investigation.
3. During the investigation, the investigator
82
will provide a copy of relevant information
arising from the investigation to the staff
member. The staff member will be provided
19
with a reasonable opportunity to comment
on the information before the investigator
reaches a conclusion.
t
Ac
Investigation Meetings
A written request will be provided to the staff
n
member to attend an investigation meeting which is
io
a forum for the:
at
a) Staff member to provide any response,
explanation, comment or submission or
rm
other input in relation to the allegations or
information in relation to the allegation;
fo
b) Investigator to put questions to the
staff member about the allegations or
In
the alleged facts or events on which the
allegations are based, or information
arising from the investigation;
c) More than one meeting may be required,
depending upon the circumstances;
d) Advance notice will be to those attending
the meeting of who the meeting attendees
will be.
Investigation Report
The investigator will prepare a draft written
report. This report will contain the investigator’s
conclusions drawn from the investigation. This draft
report will be provided to the staff member, the
decision maker, and HR for any written comments
which will be considered by the investigator.
Where there is a formal complaint, the investigator
may provide a copy of the draft report to the
complainant for any written comments which will
be considered by the investigator. The investigator
may choose to amend the report after considering
comments. The staff member’s comments will be
attached to the final version of the report.
The final report will be provided to the staff
member, the decision maker, and HR. Where there
is a formal complaint, the investigator may provide
a copy of the final report to the complainant,
however this will be determined on a case by case
basis in accordance with the law.
25
 Investigation Report Follow Meeting
The decision maker will identify whether there is a
case to answer arising from the investigation report
and if so will provide a written invitation to the staff
member to a disciplinary meeting.
At the disciplinary meeting the staff member will
Suspension
The Ministry may consider suspending the staff
member either on pay or unpaid during the course
of the investigation. Suspending a staff member is a
serious matter and must be referred to HR for prior
consideration and advice.

82
be provided with an opportunity to respond to the
allegations by way of comment, explanation or other Variations to Disciplinary Process
input on the allegations and/or the investigation

19
Departures from this recommended process are
report. permissible provided that the staff member is
In the event that the decision maker identifies treated fairly overall and the relative seriousness of
the allegations is taken into account appropriately

t
that there is not a case to answer arising from

Ac
the investigation report, the staff member will be during the disciplinary process. Managers must
formally advised. obtain HR advice before departing from this
recommended process.

n
Preliminary and Final Decision Any failure to follow this recommended process will

io
not invalidate the process or its outcomes.
The decision maker will consider the input from the

at
staff member during the disciplinary meeting and
will make a preliminary decision as to whether or Warnings

rm
not the allegations against the staff member have Where a disciplinary process results in disciplinary
been established. action falling short of dismissal, the Ministry may
If allegations against the staff member are
considered to have been established the staff fo
elect to issue a warning to the staff member.
Depending on the circumstance the warning may be:
In
member will be provided with this written • A verbal warning;
preliminary decision.
• A written warning;
al

The decision maker will consider any input from

the staff member and will make a final decision on • A final written warning.
ci

whether the allegations have been established. The Ministry’s delegations require mandatory
ffi

The final decision about the allegations will be consultation with HR before any disciplinary action
is invoked.
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conveyed verbally and in writing to the staff

member, and the proposed range of disciplinary
actions or penalties that may be imposed, if any. Dismissal
he

The staff member will be given the opportunity to

Where a disciplinary process indicates the potential
provide written or verbal input on any disciplinary
need for dismissal, HR is to be immediately advised
rt

action or penalty that may be imposed.

prior to any further action being taken.
The decision maker will consider any input from
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the staff member about any proposed disciplinary

action or penalty, and will make a decision about
un

the disciplinary action or penalty to be imposed.

The decision on disciplinary action or penalty will
be conveyed to the staff member verbally and in
d

writing.
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Where there is a complaint, the Ministry may

provide the complainant updates on outcomes, as
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appropriate.
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26
 1. Definitions

Good Employer Defined in section 56 of the State Sector Act 1988.

A “good employer” as an employer who operates a personnel policy containing
provisions generally accepted as necessary for the fair and proper treatment of
employees in all aspects of their employment, including provisions requiring:
• Good and safe working conditions;

82
• An equal employment opportunities programme;
• The impartial selection of suitably qualified persons for appointment;

19
• Recognition of the aims and aspirations of the Māori people;
• The employment requirements of the Māori people; and

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• The need for greater involvement of the Māori people in the public service;

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• Opportunities for the enhancement of the abilities of individual employees;
• Recognition of the aims and aspirations, and the cultural differences, of ethnic

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or minority groups;

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• Recognition of the employment requirements of women;
• Recognition of the employment requirements of persons with disabilities.

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Misconduct Misconduct is when an employee does something wrong either by: doing some-
thing, not doing something, or through their behaviour. Misconduct includes but
is not limited to:
• Any unacceptable behaviour; fo
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• Unauthorised absence from the workplace;
• Repeated unexplained absenteeism;
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• Abandonment of employment;
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• Misleading the Ministry in the use of sick leave;

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• Distributing or displaying offensive material;

• Use of obscene or abusive language;
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• Failure to observe general safety rules;

• Working in an unsafe manner or failing to make proper use of safety
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equipment that is provided;

• Unsatisfactory work performance;
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• Misuse or unauthorised use of Ministry property;

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• Sleeping during working hours (unless justifiable, for example recovery in the
sick bay);
• Failing to fill in a time record;
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• Failing to report without justifiable reason absence due to sickness or

emergency to manager/ supervisor by the expected time (usually 9.30am);
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• Gambling on Ministry premises;

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• Behaviour that causes offence to another person or employee while on Minis-

try premises or on Ministry business;
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• Downloading of unauthorised computer software on to Ministry computer

hardware/systems.
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27
 Serious Misconduct Serious misconduct is misconduct that destroys or so deeply erodes the required
relationship of trust and confidence between an employee and employer that
dismissal is what a fair and reasonable employer could so in all the circumstances.
Serious misconduct includes but is not limited to:
• Failure or refusal to comply with legal requirements of Ministry work rules/
code of conduct;

82
• Refusal to perform work assigned or to obey a lawful order;
• Walking off the job;

19
• Falsifying their own, or another employee’s, time record or other Ministry
records;
• Improper use of official information;

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• Damage to Ministry property;
• Irresponsible use of fire protection or safety equipment;
• Reporting to work under the influence of alcohol or drugs;

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• Bringing illegal drugs or alcohol onto departmental premises, consuming

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alcohol in the workplace without management consent or consuming illegal
drugs;

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• Disorderly conduct;

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• Endangering other staff or Ministry clients, including violent behaviour;
• Failure to observe safety rules;
• Bullying;
• Sexual or racial harassment;
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• Possession of Ministry property without permission;
• Assaulting another employee;
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• Removing or taking another employee’s personal property/possessions;

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• Abuse directed to another person;

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• Failure to comply with a lawful command;

• Theft or misappropriation.
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Sub-standard An employee failing to achieve agreed performance objectives.

performance
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Pre-determination Making a decision about what will happen to the employee before:
• Investigating the conduct;
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• Putting concerns to the employee; and

• Hearing and considering an employee’s explanation.
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Human Resources
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6 September 2018
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28
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