New Zealand: Workplace Bullying

Last Updated: 6 July 2006
Article by Richard Roil

Allegations of workplace bullying seem to be all the rage. There has been a marked increase in personal grievances relating to bullying. These have taken the form of grievances based on constructive dismissal or unjustified disadvantage claims by the bullied and unjustified dismissal claims by the bully.

How an employer should respond and react to allegations of bullying is, like many other instances in the employment relationship, a question of fact and degree. Bullying itself can take a number of forms, from overt threats of physical violence of which an employer is aware of, to subtle and insidious use of words and gestures unknown to an employer. Over the past few years there have been a number of cases which cover the spectrum of bullying behaviour.

Common law and statutory duties

Set out below are some of the examples of bullying and non-bullying conduct as well as ways of dealing with them. However, before any examples can be given it is important to understand the duties owed by an employer in this context.

The Health and Safety in Employment Act 1992 places a duty on employers to protect their employees from harm and hazards likely to cause harm. ‘Harm’ includes physical injury as well as mental harm caused by work-related stress. The definition of ‘hazard’ includes ‘…an activity… situation… that is an actual or potential cause or source of harm’. Certainly physical abuse by a bully will meet this definition but, conceivably, persistent verbal abuse that results in or contributes to an employee’s workplace stress will also be caught.

There is a similar duty at common law for employers to provide a safe workplace. This is an implied duty in all employment agreements. If breached, it is this duty that will result in an employer being liable to awards for lost wages and compensation. Equally an employer who dismisses a bullying employee must, as with all cases of dismissal, observe the minimum requirements of procedural and substantive fairness. It can be a ‘Catch 22’ situation for employers.

Examples of bullying behaviour resulting in constructive dismissal claims

It is important to understand that for behaviour to amount to bullying it must be unwanted and unwarranted behaviour that a person finds offensive, humiliating or intimidating which is repeated over a period of time.

For an employee to succeed with a constructive dismissal claim they will invariably have to raise the issue of bullying with their manager or some other person in a position of authority to ensure action is taken. If no action is taken or it is not taken quickly enough the employee may choose to resign and then bring a constructive dismissal claim. The question then becomes one of awareness by the employer of the bullying situation, either what they were directly made aware of or should have been aware of due to the circumstances.

Numerous examples of bullying behaviour which have resulted in successful constructive dismissal claims include:

  • Death threats and threats of violence (in this case the employer was aware of the threats but delayed in acting because they had not received a complaint).
  • Verbal abuse, including swearing at an employee for a period of three months.
  • Repeated comments about an employee's psychological problems, numerous implied comments about the employee not being wanted at work and statements that the employee's commission sales would not be approved.
  • Pushing and shoving an employee out of the way on a regular basis.
  • Intimidation by a person in a position of power of the employee.

Managing the situation

To successfully manage a situation of bullying the obligation on an employer is to assess the situation and reply appropriately. Not all situations will require a disciplinary investigation by an employer and many situations may not require a formal sanction. It is always a question of fact and degree and it is important that employer’s policies reflect this.

Not all conduct complained of will amount to bullying and there are numerous examples of this. These include:

  • Brusque or blunt management style.
  • Swearing in the presence of an employee, unwarranted criticism of an employee and communicating in a tone that communicated a disdainful attitude to the employee concerned.
  • Being made to wear a beanie hat with a propeller on it.

Many of these cases have been decided on the personal characteristics of the employee concerned. The Employment Relations Authority has found on numerous occasions that the resigning employee has been a sensitive or extraordinarily sensitive person who had taken offence at normally accepted behaviour in a workplace. A good example of normal behaviour in the workplace is the use of swear words. Courts have recognised for some time that the language at some workplaces is more robust than at others and swearing, while not ideal, will not be as offensive in one workplace as another. With swearing allegations it is perhaps a question of intent and whether the words are directed at anyone in particular. A similar approach can be taken for many instances of allegations of verbal bullying, where motive and context will play a large part in assessing the nature and affect of the communications.


Bullying in the workplace can lead to numerous practical problems for employers in terms of productivity and employment relationships generally. However the appropriate legal response should always be considered carefully, as duties are generally owed to all employees concerned, even the alleged bully.

Allegations of bullying should never be dismissed out of hand but the appropriate response from an employer should always be considered in light of the nature and seriousness of the allegations. It is important for employers to be aware of their workplace relations between staff, as some situations will not require a bullied employee to raise a complaint where an employer is or should have already been aware of the bullying behaviour.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions