Background 

Ms B was an employee of Ms A and, after ceasing her employment, made a complaint to the New Zealand Law Society Te Kāhui Ture o Aotearoa alleging that Ms A bullied and was aggressive towards her employees.  

Ms B provided several examples of interactions she had with Ms A that contributed to what she felt was an “unsafe” and “toxic” workplace, prompting the Committee to appoint an Investigator to assess the issues raised in the complaint. After reviewing the Investigator’s report (report), the Committee concluded that three of the interactions described by Ms B raised concerns about Ms A’s conduct based on the evidence available.  

Incident one 

Ms B alleged that Ms A swore and raised her voice at her after she was asked a question. Ms A recalled asking Ms B “what don’t you understand?” and accepted that she may have sworn. She acknowledged that she could have used a more professional tone.  

The report confirmed that the language and volume used by Ms A appeared to be inappropriate and the Committee was satisfied that the interaction occurred as described by Ms B.  

Incident two 

Ms B alleged that Ms A swore and raised her voice at her again after she failed to complete a task. The report found that, while the evidence supported that Ms A swore during the interaction rather than directly at Ms B, it was still unnecessary and unprofessional to do so.  

Incident three 

Ms B alleged that Ms A swore and raised her voice at her for a third time. Ms B accompanied this example with an audio recording.  

Ms A stated that she was “deeply embarrassed and ashamed” by this incident but that it was not a part of a pattern of bullying behaviour. By way of explanation, Ms A noted that she had a busy, understaffed practice and was working through personal issues. She was disappointed and frustrated with Ms B’s actions, however she immediately regretted her reaction. An apology email was sent to Ms B two days later.  

The report acknowledged that Ms A had been candid about her behaviour and confirmed it was unprofessional and inappropriate. The Committee noted that there was no dispute about whether this allegation took place as described by Ms B.  

Ms A’s response 

Speaking to the incidents generally, Ms A argued her conduct was not bullying or harassment. She accepted that she could have managed situations better but did not consider that her conduct was repeated, unreasonable behaviour. She pointed to mitigating factors such as personal issues and extreme business stressors at the time of the conduct. She noted she had engaged with therapy and was now working under supervision.  

Maintaining professional standards and treating all persons with respect and courtesy 

The Committee was persuaded that Ms A’s conduct was not an ongoing issue and turned its attention to whether Ms A had promoted and maintained professional standards. It also considered whether she had treated all persons with respect and courtesy under rules 10 and 10.1 of the RCCC.  

The Committee outlined incident three as being the most serious and, when taken together with incidents one and two, demonstrated a pattern of inappropriate language and aggression in verbal communications. It concluded that Ms A failed to treat Ms B with the required respect and courtesy, breaching rules 10 and 10.1 of the RCCC.  

Requirement not to engage in conduct that amounts to bullying or harassment 

There was significant discussion to determine whether Ms A’s conduct had also breached Rule 10.3, which provides that lawyers must not engage in conduct that amounts to bullying or harassment.  

The Committee was guided by the definitions of both terms given in the RCCC, with bullying being “repeated and unreasonable behaviour directed towards a person or people that is likely to lead to physical or psychological harm” and harassment being “intimidating, threatening, or degrading behaviour directed towards a person or group that is likely to have a harmful effect on the recipient,” which includes “repeated behaviour but may be a serious single incident.” 

Definition of bullying and harassment 

The Committee noted that Ms A’s conduct was not exclusively targeted towards Ms B to the extent that it could be considered deliberate harassment. It acknowledged that harassment may occur from a serious single incident and marked its concern about incident three. However, the Committee determined that it would be more suitable to consider this incident under a potential finding of bullying.  

Taken with the fact that the behaviour spanned a “discrete” period of time, the Committee concluded that Ms A’s conduct was lacking in the level of seriousness required to meet the threshold of harassment.  

Committee’s consideration of rule 10.3 

In determining whether Ms A’s conduct was bullying, the Committee noted that Ms B reported feeling “humiliated and really upset” following incident one. The Committee acknowledged that, while this does not reflect the most severe type of psychological harm, anyone may reasonably be distressed after being spoken to in this way by their employer.  

The Committee discussed whether incident two could be considered behaviour “directed towards” an individual, given that Ms A swore during an interaction rather than at Ms B directly. However, the Committee noted that Ms A’s reaction was in response to the actions of Ms B and was of the view that Ms B could perceive the behaviour to be directed at her. The Committee did not consider this detail to materially reduce the seriousness of the incident and concluded it would not be unreasonable for Ms B to be distressed at the time.  

The audio recording of incident three led the Committee to the clear view that Ms A’s behaviour was fully directed towards Ms B on this occasion. Whether Ms B reported psychological harm or not, the Committee concluded that a reasonable individual would be distressed by being “aggressively yelled at” by their employer.  

After careful consideration of the three incidents, the Committee concluded that Ms A’s cumulative behaviour towards Ms B, by a fine margin, amounted to bullying and was a breach of rule 10.3 of the RCCC. The Committee commented that it was clear the conduct was “at the lower end of the spectrum when set against other cases of this type” and did not consider Ms A’s conduct from the time of the complaint to be an ongoing risk to colleagues.  

Unsatisfactory conduct 

The Committee noted that it is particularly important for lawyers in leadership positions to treat their staff with respect and courtesy and that obligations under rule 10 of the RCCC are “fundamental” to good legal practice. It was conscious of the mitigating factors at play, but did not consider them sufficient to offset Ms A’s failure to meet her obligations to Ms B.  

The Committee stated that incident three was “inarguable in its seriousness” and confirmed that Ms A’s breaches of rules 10, 10.1 and 10.3 constituted unsatisfactory conduct under s 12(c) of the Lawyers and Conveyancers Act 2006.  

Penalty 

The Committee was persuaded that Ms A’s conduct occurred at a time of significant stress and was encouraged by the steps she had taken to actively manage her health.  

The Committee considered the importance of any penalty to deter repeated conduct and manage any risk to the profession. It noted that Ms A is now working under appropriate supervision to support her workload and, when considered alongside the specific circumstances surrounding the incidents, did not identify any risk of recurrence that needed to be deterred by a penalty order.  

The Committee did not wish to suggest that Ms B’s complaint was inappropriate and noted that Ms A did not make a direct acknowledgement or apology for incidents one or two. The Committee considered that Ms A had clearly reflected on her conduct throughout the complaints process, but that Ms B should also be made aware of this. The Committee deemed it appropriate to order Ms A to provide Ms B with a written apology for incidents one and two.  

On costs, the Committee considered the significant time required for the matter and ordered Ms A to reimburse $1,000 to the Law Society. In reaching this figure, the Committee took into account Ms A’s engagement with the process but did note that the matter required a full investigation and further inquiry.  

The Committee considered that this case was significant and may provide valuable guidance to the profession on the detailed approach required when considering evidence against the specific wording of bullying in the RCCC and balancing this with the necessary mitigating factors.