Work Place Bullying

The issue of workplace bullying has gained much focus in New Zealand of late.  It has also increasingly become a ground of grievance in employment problems.  For this reason employers need to ensure their workplaces are safe and have a positive culture that makes the presence of bullying an unlikely phenomenon.

Nevertheless, if bullying is observed or notified in a workplace, there is a clear legal duty on an employer to immediately assess and manage the behaviours, if found, that cause distress to any employee, and act to protect employees. 

The employer has a duty to stop the offending behaviour and re-establish a healthy working environment free from bullying. 

What amounts to workplace bullying can be difficult to express with precision.  However it has been defined as, “repeated and unreasonable behavior directed towards a worker or a group of workers that creates a risk to health and safety”.  This definition has been adopted by Worksafe New Zealand.

A number of New Zealand Acts contain provisions which, in effect, recognise bullying as unlawful behaviour, and allow remedies for the complainant, and penalties against the employer. 

Section 103 of the Employment Relations Act 2002 allows employees to take grievances against employers, not only for unjustifiable dismissal but, for “disadvantage” suffered as a consequence of “unjustifiable actions” as well as on grounds of “discrimination”, “harassment”, or “duress”.

Bullying can easily be found to sit within the scope of many of the grounds for grievance. If it can be shown there was unwelcome behavior toward the employee, which caused a detrimental effect on their employment, job performance or job satisfaction, a grievance will be found.

Workplace bullying may arise from the actions of the employer directly, but can arise out of the employment environment generally, where the complainant has been subjected to such behaviour from another employee, or potentially even an outsider.

The Human Rights Act specifically recognises “clients” or “customers” as persons able to affect employees detrimentally and from which employers need to protect their workers if necessary.  Under the Human Rights Act if an employee makes a complaint of unwelcome or offensive behavior against them, and that was established to have occurred, the employer then has an obligation to take whatever steps are practicable to prevent any repetition of such a request or of such behaviour.  The same applies under specific employment legislation.

The Health and Safety in Employment Act 2002 places obligations upon employers in relation to bullying and provides potentially stinging fines to employers who allow such conduct to continue in the workplace.

The HSEA is increasingly being utilised in relation to claims where workplace bullying has occurred.  Section 2 requires an employer to manage any hazards in the work place and ensure they eliminate, isolate, or minimize, those as required.  Additionally, the HSEA requires employers to monitor the health of employees to ensure that their work is not having a detrimental effect on their health.  Thus when issues of workplace bullying come into play there is a strong positive obligation placed upon the employer that these matters are dealt with and attended to promptly and properly.

The remedies for an employee who has been found to have suffered workplace bullying are potentially very high, as are the potential fines under the HSEA against employers who allow such harms to occur, or fail in their duties to prevent them. 

Section 49(2) of the HSEA provides for penalties up to $250,000 where a person who “knowing that failure to take any action is reasonably likely to cause serious harm to any person, fails to take the action.”  Workplace bullying is certainly recognized as likely to cause ‘serious harm’ in New Zealand law. Thus if an employer becomes aware of such a problem in the workplace, they need to act swiftly and properly to deal with that.

Beyond the potential criminal censure and financial risks in allowing bullying to occur in a workplace, there are very negative implications for the businesses performance where it occurs.  It will impact badly on business through high attrition, low morale and poor reputation if bullying is allowed to exist.

Employers need to maintain mindfulness of the culture of their workplace and work to ensure it is a positive one, where the required relationships of trust, confidence and good faith, are honoured.  Good faith relationships require employers and employees to be active and constructive in their interactions, so a productive employment relationship is established and maintained.  Observance of positive relationships acts to safeguard against an employment environment in which bullying is likely to emerge, and pays dividends in goodwill and productivity.