New Zealand: Workplace Bullying

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.

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.

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.

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.