As published in NEWLAW Issue 01
With the release of WorkSafe New Zealand's Best Practice Guidelines: Preventing and responding to workplace bullying (Guidelines), employment law specialist Bridget Smith outlines what the Guidelines spell for employees and employers confronted with workplace bullying.
Bullying: it is the sort of thing that we should only hear about with children in the playground, too young to know better. Instead, sadly, bullying is also common in workplaces; undermining confidences, destroying reputations, and ruining careers.
If you're anything like me, you enjoy what you do. Given work is where most of us spend a large proportion of our waking hours up to five days per week, liking what you do, or at the very least, not hating it, is an important part of getting through the working day. For me, getting up and going to work isn't (as a general rule) a chore (sure, we all have those days). I can't imagine fearing going into work, or not wanting to go into work because you don't know how you will be treated or what awaits you. And it must be even worse for someone who is the main income earner for their family. Feeling trapped in a particular job where you are being bullied but you feel you can't leave because your family depends on your income must be truly awful, yet, I strongly suspect it is a reality for, hopefully, a small number of, employees.
The law in relation to bullying
The Health and Safety in Employment Act 1992 requires employers to provide a healthy and safe workplace for employees. The Employment Relations Act 2000 requires employers to act in good faith towards employees, including being responsive and communicative. And the Human Rights Act 1993 sets out 13 prohibited grounds of discrimination.
But, until February this year, New Zealand legislation did not contain any definition of bullying. What this meant in practice was that what constitutes bullying was not clear and was open to interpretation. Some workplaces defined
bullying in policies, guidelines, codes of conduct, or workplace rules; and where that was done, the workplace was obliged to deal with any bullying claims in a manner consistent with its contractual documentation. The absence of a definition of bullying meant as many as three people had to determine the conduct was bullying in order for action for occur. For example, in the first instance it was up to the victim of bullying to decide whether the conduct constituted bullying, and if so, to pursue it with the employer. The next step was for the employer to conduct an investigation and decide whether the conduct constituted bullying. If the employer decided the conduct constituted bullying and took disciplinary action against the 'bully' that could lead to the involvement of a third party, an Employment Relations Authority (ERA) member, determining whether the conduct of the alleged bully amounted to, for example, serious misconduct, and if so, whether it warranted dismissal.
However, thanks to the February 2014 publication of the Guidelines, we now have a definition of bullying:
"[R]epeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. Repeated behaviour is persistent and includes 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 is not considered bullying but it can escalate and should not be ignored" (Guidelines, p6).
The issue with a lack of a definition for bullying is that it leaves open a wider argument that one person's bullying is another person's harmless joke. Accordingly, a definition of bullying is important and assists in removing some of the subjectivity from the topic. Objectively, there is conduct that is unreasonable, especially within a workplace and the definition of bullying provides guidance on key concepts which it is clear must now be present if behaviour is to be considered to constitute bullying. Those concerns are repetition/persistent behaviour and unreasonableness of the behaviour.
While the WorkSafe definition of bullying is certainly progress, a claim regarding bullying still needs to be pursued as a breach of some other piece of legislation: most commonly the Health and Safety in Employment Act, the Employment Relations Act, or the Human Rights Act. Harassment and discrimination can be part of bullying, and have their own legal remedies.
A guide to the Guidelines
The Guidelines are 72 pages long and broken down into eight parts:
- What is workplace bullying?
- Advice to employees.
- Preventing bullying in your workplace.
- Measuring bullying in your workplace.
- Advice for employers: dealing with reports of bullying.
- Roles and responsibilities for preventing and managing bullying.
- Useful tools for preventing and managing bullying.
- Three case studies.
These subparts make it clear that the best practice guidelines are intended both for employees and for employers.
The Guidelines provide reasons why bullying is bad for business (if that wasn't apparent already). The reasons include reduced productivity and a disrupted workplace through impaired performance, increased absences, low morale, etcetera. The Guidelines go on to provide assistance as to how to identify, assess, and manage behaviours as well as how to stop unreasonable behaviour ' and establish healthy workplace relationships. Part 5 is specific advice for employers on dealing with reports of bullying including: making sure your staff know how to report, responding to reports, deciding how serious the issue is, response options. formal investigation process, and principles of natural justice.
While there are specific parts directed at employees (Part 2 - advice to employees for example) the fact and existence of the Guidelines will hopefully assist in greater attention being given to bullying within the workplace and result in either fewer issues or better employer practices for dealing with issues.
The thing about bullying
The thing about bullying is that it often deliberately occurs in private, away from the public eye. For the bully that means there is less chance of getting 'caught', and for the victim, it is a double whammy- not only does he or she know it is their word against the bully's but also, he or she will frequently second guess themselves, asking if that really happened or if they've exaggerated it.
Because bullying commonly has the effect of undermining the victim's confidence, it also means that victims of bullying are frequently afraid to come forward. They fear making the situation worse if the termination of the bully's employment is not the outcome (and of course it is not an outcome that can be guaranteed simply by making a complaint). They fear retribution from the bully or not being believed. In this regard, the existence of a definition of bullying gives victims of bullying a yardstick against which to measure their treatment and to more objectively assess whether they are being appropriately treated by their colleagues and/or whether their employer is dealing with any issues raised in a lawful and fair manner.
Bullying case law in New Zealand
As noted above, because bullying is not covered by any existing New Zealand legislation, claims of bullying form part of claims for breaches of other legislation. For example, bullying (and an associated failure to deal with notice of the
same) can form part of a claim for constructive dismissal (that an employee had no other option but to leave). Where an employee remains in employment, bullying (and again, a failure to deal with notice of the same) can form part of an unjustified disadvantage claim. Another option is that an employer dismisses a bully following an investigation and finding that the conduct constitutes serious misconduct.
It is important if an employee intends to claim constructive dismissal (where the onus is on the employee to prove his or her actions are reasonable) that the employee has put the employer on notice of the issues that exist. An actionable claim for constructive dismissal, where the employee alleges he or she was bullied, is likely to require findings that:
- The employee was bullied;
- The employee put the employer on notice of the bullying;
- The employer failed to take appropriate action; and
- The employee was justified in leaving his/her employment as a consequence.
The Guidelines gives something more for an applicant (or defendant in the case of an employer defending a serious misconduct finding) to rely on in establishing bullying, and also the appropriateness or otherwise of the employer's actions. It will be interesting to see how the Guidelines are applied by the ERA moving forward.
Fundamentally, the introduction of the best practice Guidelines must be a good thing. If nothing else, they draw more attention to the issue of bullying, which will hopefully give confidence to employees to come forward and give tools to employers to deal with issues raised.
The Guidelines can be downloaded from www.business.govt.nz/worksafe