There is no statutory definition of workplace bullying, although under the Health and Safety at Work Act 2015, hazard includes a person’s behaviour where it has the potential to cause ill health. In WorkSafe NZ’s best practice guidelines “Preventing and Responding to Workplace Bullying” workplace bullying is defined as:
“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 which 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.”
Many employers also have policies that include definitions of bullying and/or harassment.
Bullying may occur not only between an employer and an employee, but also between two or more employees of any level or seniority. It is the behaviour, not the relative position or seniority, which is the defining factor.
Examples of bullying behaviour
- Physical assault, physical intimidation, stalking, offensive gestures;
- Abusive or offensive language, ridiculing, innuendo and insulting ‘jokes’;
- Undermining the target around co-workers and clients, scapegoating, humiliating;
- Social isolation, malicious rumours, ostracism and disparate treatment;
- Excessive fault finding and criticism, undermining or undervaluing contribution;
- Unjustified disciplinary processes, threats or hints about job security, unreasonably changing goalposts or setting impossible targets.
Why is bullying a concern to employers?
Having a bully within an organisation is likely to reduce overall performance, lower staff morale, increase sick leave use, increase turnover, and may harm the organisation’s reputation and perception by customers and potential job applicants. The damage a bully can do to an organisation should not be underestimated.
Employers have a statutory obligation under health and safety legislation to provide a safe working environment. If an employer does not act to address an allegation of bullying they may be held to have subjected the employee to an unhealthy and unsafe working environment, resulting in either unjustified disadvantage or repudiation of the employment agreement and consequential constructive (and unjustified) dismissal.
Employers may also be liable for a breach of the Health and Safety at Work Act 2015 if they are notified of bullying and do nothing to remedy the situation.
Where is the line drawn?
An undeniable part of working life is that employees are required to follow reasonable instructions from their employer and from time to time this may result in them doing tasks they would rather avoid. Similarly, if an employee’s performance is not up to acceptable standards, then it is quite reasonable for an employer to critique and manage their performance. In normal circumstances, insisting on compliance with performance standards, policies and safety requirements is not bullying because it is not unreasonable.
However, “picking” on a particular individual, repeatedly setting unachievable deadlines, assigning meaningless or demeaning tasks and unreasonable monitoring and criticism may well “cross the line” into bullying behaviour, especially if the intention is to victimise, humiliate or intimidate.
The question of whether a superior has bullied a subordinate is not always clear-cut, and often a careful investigation is necessary to properly evaluate an allegation of bullying.
The alleged bully
Many individual employment agreements define bullying or harassment as serious misconduct justifying summary dismissal. Therefore from the alleged bully’s perspective, it is critically important that a fair investigation into the allegation is conducted and that unsubstantiated allegations of bullying are swiftly addressed.
What Bartlett Law can do for you
- Advise on how to address allegations of bullying when they are raised;
- Assist in the investigation;
- Assist with preventative measures such as internal policies and codes of conduct;
- Assist with mediation;
- Assist employees who may be subjected to bullying through the personal grievance process;
- Assist employees accused of bullying;
- Represent you in the Employment Relations Authority and the Employment Court.
Contact us to learn more.