Bullying – ‘walking the walk’
Bullying is a topic that we can all relate to and unfortunately, it's something that many of us come across in the workplace.
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 The behaviour must be:
What should an employer do?
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.
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:
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.