Bullying – ‘walking the walk’

Tuesday, March 15, 2022

Bullying is a topic that we can all relate to and unfortunately, it's something that many of us come across in the workplace.

Legal definition

What exactly is bullying in the workplace?  In a New Zealand employment law context, it is the “repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm”.[1] The behaviour must be:

  1. Repeated / persistent (occurs more than once) and can involve a range of actions over time.
  2. Unreasonable: actions that a reasonable person in the same circumstances would see as unreasonable and includes victimising, humiliating, intimidating or threatening a person.
  3. May also include harassment, discrimination or violence.

Workplace bullying will often look like the stuff of the school playground: shouting, mean words, physical abuse and even rages. But it is just as often more subtle behaviour: withholding information or resources, ignoring the target, starting rumours, exclusion, teasing, setting impossible deadlines, and unfriendly looks and body language.  Bullying behaviour can be difficult to identify because people will have different opinions on what behaviour constitutes workplace bullying and there are multiple channels through which workplace bullying can occur, including email, instant messaging and other electronic means.

Bullying behaviour has been held to be a breach of the implied terms of trust and confidence in the employment relationship. An employee who resigns because they are being bullied at work may be able to successfully claim constructive dismissal. In addition, bullying may put the employee’s health and safety at risk by causing them harm (for example a depressive illness). Employers who do not adequately identify and control hazards run the risk of being prosecuted for breaching the Health and Safety at Work Act 2015.

What should an employer do?

Policy

Employers should consider implementing a bullying policy, which reflects what they think bullying looks like in their workplace. Buy in from employees will help with adherence to the policy and will reflect the fact that acceptable behaviour will look different in different work environments (acceptable language verse offensive language being an often-cited example). This policy should be clear and well communicated and can be attached to an employee’s employment agreement at the start of their employment (or a signed acknowledgment if the policy is implemented during employment).

Informal / initial approach

Workplace bullying complaints should be dealt with on a case-by-case basis. An informal process may be the best way to approach things initially, particularly if the complaint is made informally and / or the complainant wishes to keep their complaint confidential / anonymous for the time being.

Where the subject of a complaint may be unaware of the effect of their actions on a colleague, just making the person aware of the consequences can be effective.

Alternatively, the person may react negatively and become defensive. If this were to occur, the problematic behaviour should be identified and expectations of behaviour made clear to the person. Some commentators suggest mediation as an appropriate tool. Others disagree, as it can suggest that both parties have failings that need to be resolved when in actual fact, a true case of bullying is a failing on the part of the perpetrator only; an attempt at making the target take responsibility for “putting it right” by mediation will likely fail.

Formal

A formal approach may be needed if an informal approach has been ineffective, a formal complaint has been received or the situation appears to be so serious that an informal approach would not be appropriate and will likely require initiating a formal investigation.

Upon receiving a bullying complaint, immediate action may be required to protect the safety of those involved. For example, it may be necessary to consider suspending the subject of the complaint pending the outcome of an investigation or putting in place measures to ensure that the subject of the complaint and the complainant do not have to see or interact with each other day-to-day.

A formal investigation must be consistent with any relevant policies, procedures and employment agreements and the principles of natural justice and good faith obligations should be front of mind. Investigations may be conducted internally, but the use of an independent external investigator often works better (and will likely be treated as fairer by the Employment Relations Authority / Employment Court).

Conclusion: Reduce the risks in the first place

Regardless of how well drafted an anti-bullying policy is, it will only be effective to the extent it is implemented and enforced. An employer should:

  1. Have a bullying policy that is clear and well communicated.
  2. Train employees in the policies and procedures for workplace bullying and harassment.
  3. Include workplace conduct and behaviour in performance appraisals.
  4. Have a robust complaints procedure in place, with a named person who acts as a “workplace bullying officer” to whom complaints can be made. Employees will often not feel comfortable going to their manager, either because they may be the cause of the complaint or because they are worried about the perceived fallout from making such a complaint.
  5. Take immediate action when a complaint is made to protect the person who made the complaint.
  6. If the investigation finds that bullying has occurred, take action to deal with the bully.
  7. Action to deal with the bully will depend on the situation - for example, a warning, or even potentially dismissal for serious misconduct.
  8. Provide victims of bullying with support and counselling where appropriate.
  9. Keep records of all bullying incidents, complaints made, investigations held, the results of investigations, and any actions taken.

Importantly, for a policy to effectively become part of workplace culture, it needs to be teamed up with zero tolerance to bullying. ‘Walking the walk’ rather than merely ‘talking the talk’ will go a long way in addressing workplace bullying.

Please contact a member of our employment law team for further information.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

 

[1] By way of a definition, see MBIE Bullying and Harassment at Work - Issues Paper: An In-depth Look (2020) <www.mbie.govt.nz> at [28].

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