Thursday, April 22, 2010

Strikes in Cyberspace: Guest Blog

Guest Blogger: Amanda Reilly

In September of 2007 Italian IBM workers went on strike. What was unusual about this event is that it was very widely publicized as a strike in Second Life; Second Life is the most well known of the virtual worlds which are synchronous computer networked worlds where people are represented as avatars.

A video detailing the sequence of events can be viewed here.

The short version is that as events transpired 1853 persons joined “the strike” from 30 different countries for 12 hours by logging onto Second Life as avatars. The IBM business island in Second Life was occupied by these “strikers” and shortly after that closed, and a meeting of IBM executives which was taking place in Second Life was suspended. Twenty days after this event the Chief Executive Office of IBM Italy resigned and a union agreement signed.

There is certainly no doubt that the “strike” was a creative, interesting attempt at utilising new media for purposes of publicizing and communication industrial action.
However, it would premature to suggest that this is the wave of the future as there have not been any subsequent “strikes” in Second Life. Still it is interesting to speculate on the legal and other implications of this event.

One question I have is whether it was really a strike in Second Life? My view is that it was not. A strike is generally understood as a work stoppage. The Italian IBM workers may have stopped work but they did not do so in Second Life. They stopped work in Italy where their physical bodies were located.

Perhaps the so-called strike in Second Life could be seen as akin to a picket? As reported, there some disruption to the affairs of IBM in Second Life when the IBM business island was closed and a meeting occurring there was disrupted by an invasion of avatars. This does raise a potentially problematic issue. Picketing is generally legal in a public space but arguably Second Life is a private space rather than a public space.

Importantly, even if the avatars who invaded the IBM Second Life Offices can be seen as akin to illegally trespassing picketers it would be very difficult to punish or prevent this in any significant way. Participation in this sort of activism is very low risk compared to an actual physical picket which has real potential for violent consequences for participants. The physical bodies of those represented by the invading avatars were safely at their computers dispersed over 30 different countries. In fact, they need not even have been at their computers since it is possible to install a programme to click a mouse button every few minutes which has the effect of keeping an avatar logged into Second Life without the need of any human intervention or observation.

I wonder if perhaps the action taken by the avatars in Second Life was, in fact, more akin to defacing a bill board? The purpose of IBM presence in Second Life is arguably for advertising and public relations purposes rather than it being a genuine place of business. While it’s true a meeting of IBM executives in Second Life was disrupted it seems likely that this could very easily have been reconvened away from Second Life by conference call.

Wednesday, April 21, 2010

New Zealand Labour Law Society

The New Zealand Labour Law Society was formed in late 2009 and has just held its first AGM. The Society will be launched in Auckland on June 3rd. Details will be posted later.

The purposes of the Society are to:
(a) to promote the study of, and exchange of ideas about, labour law and social security in New Zealand and at the international level;
(b) to provide lawyers and others working in the fields of labour law and social security with a forum for discussion and debate;

All persons with an interest in labour law are welcome to join for a mere $25. Contact Michelle D'Souza [] who can send you a membership form

Thursday, April 15, 2010

Workplace Bullying

The recent release of the report by Professor Bentley and his colleagues on workplace bullying puts the spotlight on a problem that has, over recent years, increasingly been recognised as a major workplace issue. One obvious question that arises is what legal redress is avaiable to victims of bullying? The Minister of Labour, Kate Wilkinson, is reported as stating that the employment institutions can deal with claims of bullying through personal grievance claims. I agree with this comment although with some caution and reservations.

In some ways bullying stands in much the same position as sexual harassment did two or three decades ago. Society and the courts were initially slow to recognise both the nature and extent of that problem and to react positively in dealing with it. That position is now vastly improved. That is not to say that there are no problems in bringing a personal grievance based on sexual harassment - there are but they tend to be problems that are endemic to legal processes such as satisfying the burden of proof and the adversarial nature of the grievance process rather than a failure to recognise the underlying problem.

That both the Employment Court and the Authority take bullying seriously is clear if one examines cases over recent years. In a blog such as this it is not possible to provide a detailed legal analysis but a recent example is provided by Judge Shaw's decision in Clear v Waikato DHB [2008] ERNZ 646. Judge Shaw stressed the obligation of employers to provide a safe system of work and an obligation to properly investigate allegations of bullying. She also made the important point that such an investigation must consider the course of conduct as a whole (the 'persistence' aspect of bullying) and not focus on individual events in isolation. Other cases also indicate that both the Court and Authority have a good grasp of the problems posed by bullying. However in the absence of overt and obvious conduct such cases are not always easy to decide. The problem of "management style" for example poses real problems. One persons need to manage poor performance can be viewed by aother as bullying. However in general the Court and Authority seem to have taken a sensible and pragmatic approach in such cases.

As yet however the Authority and Court do not seem to have had to deal with the most intractable form of bullying, the workplace psychopath. Such bullies are typically confident and assured and likely to be supported internally by their own managers. Most practicing labour lawyers will have come across such cases and will know the difficulties they pose. and the severe nature of the trauma faced by the employee (or former employee) who often has difficulty even appreciating why they have been victimised. Formal proceedings merely increase the trauma and the result is often an indequate settlement with the bully suffering little or no consequences.

In the most insidious cases the character of bullies may be not fully appreciated by those hearing cases. Perceptions that victims are merely over-reacting to strong (and by implication necessary) management; that they are unable to adjust to new requirements or that bullying is just a “brand-new fashionable" escape clause for poor performance can have a sufficient grain of truth to cause confusion and potential bias. False perceptions of who might be telling truth based on the demeanour of witnesses are of particular concern: “he conducted himself favourably and was in charge of his emotions...” or “she maintained her dignity in responding [to allegations]. That is not the mark of a bully” show little appreciation of human conduct especially when the inevitable nervousness and confusion likely to be exhibited by the victim are seen as indications of lack of credibility.
Is the law an obstacle that adds to the other obstacles faced by victims of bullying? The answer is currently yes, but partly because of problems common to all victims in the legal system. Victims may face a high burden of proof to establish bullying and they must also be aware that the bullies are able to use their own legal rights to counter-attack, something that must also be of considerable concern to employers. The requirements of natural justice have the side-effect of exposing the victim (or more likely victims) to further abuse if the allegations are not able to be established – hence the reluctance to make formal complaints especially where, as is often the case, management and HR departments are ineffectual or hostile.

That being said, however, the personal grievance process provides the Authority and the Court with the tools to deal with cases of bullying and the effectivness of these bodies will increase as more cases are brought.

The personal grievance procedure provides as good a legal solution as is likely to be obtained but as with harassment it is second best protection - the best is that employers ensure that they are fully aware of the nature of workplace bullying and that they adopt a zero-tolerance policy towards it.

The report is avaible at;
Readers may be intersted in a paper I wrote with Neisha Cbhibba on this topic in 2008: Intractable issues in the Workplace: Dealing with Workplace Bullying, Typhoid Chris and Stess