Under the new Health and Safety at Work Act 2015 (HSW), a person
conducting a business or undertaking (a PCBU) must ensure, so far
as is reasonably practicable, the health and safety of workers who
work for the PCBU, while at work. This includes protecting workers
from harmful behaviour while at work such as bullying.
An employer's failure to deal with issues in the workplace
could lead to legal liability, including prosecution under the HSW,
or more commonly, a personal grievance claim brought by affected
Employees should also be aware that they can be individually
liable under both health and safety legislation and human rights
legislation if they have bullied others in the workplace.
What is 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
WorkSafe NZ's guidelines on how to prevent and respond to
workplace bullying provides the following definition of workplace
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 so should not be
Harassment and discrimination, which can be part of bullying,
have their own legal remedies.
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 is
in an employer's best interests to deal with any workplace
bullying issues promptly.
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.
How to deal 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 provides useful guidance on addressing 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, employers should also take steps to avoid
bullying. It is recommended that employers have documented policies
and processes that 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 their need and importance. Policies should
be reinforced, monitored and regularly reviewed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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