Workplace bullying under the microscope
Bullying in the workplace has recently come under the microscope with WorkSafe NZ issuing guidelines on how to prevent and respond to workplace bullying.
What constitutes bullying is not always easy to identify. Case law has shown that the line is far from clear between what is deemed bullying on the one hand, or blunt management on the other.
Or it could even be a shrug. A City Council in Perth is proposing to ban its employees from eye rolling, shrugging shoulders, raising one’s voice, throwing documents, slamming the door and taunting or trying to undermine others at work. The Council’s draft code of conduct addresses both inadvertent and intentional negative body language. Part of the reasoning behind the policy is to protect employees from bullying in the workplace.
WorkSafe NZ’s guidelines include a definition of bullying. This is the first time the term bullying has been defined in New Zealand and the definition will provide future direction for employers, employees and indeed Courts, on this issue.
The guidelines provide the following definition:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
- Repeated behaviour is persistent and can involve a range of actions over time.
- Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.
A single incident of unreasonable behaviour is not considered workplace bullying, but it could escalate and should not be ignored.
Harassment and discrimination, which can be part of bullying, have their own legal remedies.
The importance of employers effectively addressing workplace bullying issues was recently highlighted by the Employment Relations Authority in the case of Hirini v Bay of Plenty District Health Board . In that case, an employee of a District Health Board brought complaints of bullying to the attention of management after a series of what were supposed to be constructive “group case reviews” left the employee feeling belittled, threatened and criticised by his colleagues. It was alleged that this demonstrated a pattern of bullying behaviour that was present throughout the workplace.
While acknowledging the complaints, management failed to look any further into the issue despite a process for doing so being outlined in the DHB’s policy manuals. This failure to conduct a thorough investigation saw the Authority find that the employee had been constructively dismissed. The employee was awarded three months’ wages and $7000 compensation for hurt and humiliation.
Bullying can occur in different workplace relationships – for example, between a manager and an employee, an employee and a client, or among colleagues or co-workers. Bullying can take on many forms such as undermining, excluding, belittling or intimidating someone.
The guidelines highlight the key bullying indicators of which employers need to be aware, such as staff complaints, productivity loss, absenteeism, grievances or a string of resignations.
Regardless of the specific behaviour, bullying can have serious consequences in the workplace. It can lead to poor employee morale and reduced productivity due to absenteeism and turnover. So, it’s in an employer’s best interests to deal with any workplace bullying issues promptly.
Under Health and Safety legislation, employers must take all practicable steps to ensure employees’ safety, including protecting employees from harmful behaviour such as bullying.
An employer’s failure to deal with issues of bullying in the workplace could lead to legal liability – including a prosecution under the Health and Safety in Employment Act 1992 and/or more commonly, a personal grievance claim from affected employees.
Employees should also be aware that they can be individually liable, under both health and safety legislation and under human rights legislation, if they have bullied others in the workplace. WorkSafe NZ’s guidelines specifically address the responsibilities of health and safety representatives, line managers, human resource managers and all other management staff to take proactive steps to prevent and deal with bullying.
Dealing with a bullying allegation
Where a bullying complaint has been received, or an employer is aware of potential issues, the employer has an obligation to fully and fairly investigate.
If bullying has occurred, employers must take appropriate steps. In many cases, this could include disciplinary action against the perpetrator(s) up to and including dismissal.
WorkSafe NZ provide useful guidance on addressing these bullying complaints, including treating the matter seriously, acting promptly, ensuring non-victimisation, providing support to all parties, being neutral, communicating the process and the outcomes, maintaining confidentiality and keeping good documentation.
In addition to effectively responding to allegations of workplace bullying, businesses should also take steps to avoid bullying. WorkSafe NZ recommends that employers have documented policies and processes which emphasise the organisation’s commitment to preventing bullying, detailing an employer’s expectations of employees at work, how to raise concerns and details of how complaints will be investigated.
While many workplaces will already have these policies in place, the guidelines reinforce the need for and importance of these. Policies should be reinforced, monitored and regularly reviewed.
The WorkSafe NZ guidelines provide more certainty around preventing and responding to bullying in the workplace. While the guidelines do not have the force of law, employers will still be expected to comply with them where issues of bullying have been raised in the workplace. A failure to comply with the guidelines will significantly undermine any argument that the employer has acted as a fair and reasonable employer. Accordingly, all complaints of bullying should be taken seriously and promptly and fairly investigated.
A copy of WorkSafe’s Best Practice Guidelines can be found here: http://www.business.govt.nz/worksafe/information-guidance/all-guidance-items/bullying-guidelines
Examples of bullying behaviours – personal and task related*
*See Table 1 Best Practice Guidelines for further examples
For more information, please contact a member of our Employment team
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