Our German Desk
Kiwis have a reputation as being friendly, optimistic people, however many of our workplaces have an unspoken dark side: New Zealand has the second-worst rate of workplace bullying in the developed world. Workplace bullying can have significant adverse effects on workers’ wellbeing, but can also adversely affect a workplace’s productivity and, as a result, the employer’s bottom line.
What is workplace bullying?
Workplace bullying is not defined in legislation.
The Health and Safety at Work 2015 (HSWA) defines a “hazard” to include a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person. Bullying behaviour is a well-recognised hazard. HSWA imposes an obligation on a person conducting a business or undertaking (PCBU), in this case the employer, so far is as reasonably practicable ensure the health and safety of all workers in the workplace.
WorkSafe, the regulator responsible for the enforcement of HSWA, defines workplace bullying in its guidelines as “repeated and unreasonable behaviour directed towards a worker or a group that can lead to physical or psychological harm”. Under WorkSafe’s definition, bullying could be physical, verbal or social behaviour such as excluding someone from a peer group, spreading rumours or trolling or other negative use of social media. Bullying is not, however, one-off, or occasional, instances of rudeness or misjudgement. WorkSafe have adopted and adapted Safe Work Australia’s definition of bullying. Incidentally, Safe Work Australia considers harassment can be a single event and is “unwelcome behaviour that intimidates, offends or humiliates a person.” The key differentiation between bullying and harassment is that bullying is repeated, whilst harassment can be inferred from a single incident.
The Courts have not adopted the WorkSafe definition as a legal definition of workplace bullying per se, but the Employment Court has referred to the definition as a useful “yardstick” when determining whether an act or omission constitutes bullying.
Workplace bullying may also be defined in an employment agreement and/or workplace policy.
How should an employer deal with allegations of workplace bullying?
The employer should get a clear, detailed understanding of the behaviour or incident before it takes any action.
Where allegations are unclear, unfounded or less serious, it may be appropriate and sufficient to communicate the employer’s relevant policies and workplace expectations to all workers. It is important to ensure that the employer establishes what is and is not acceptable behaviour in the workplace.
There may be ‘low level’ interventions that could be taken to ensure the health and safety of workers. For example, an employer could encourage a worker, if he or she feels safe doing so, to say something early on to the person displaying the bullying behaviour, or the employer may attempt to facilitate a discussion between the workers involved.
An ‘informal’ approach may be suitable for situations where the employer wants to stop the unreasonable behaviour and restore a productive working relationship between the individuals involved. It is not appropriate for situations which involve serious allegations, or where there is a likelihood that the subject of the complaint may react negatively or fail to change their behaviour. Taking an informal approach would usually involve asking a manager or a trusted third party to talk to the subject of the complaint. On occasion, the employer may need to facilitate a mediation process (potentially with the assistance of the Ministry of Business, Innovation and Employment (MBIE)) to resolve any issues between the workers involved.
A formal approach is appropriate where the employer decides there is good reason to start a disciplinary process as a result of a complaint made. This approach involves appointing an investigator (either internal or external) to investigate the facts behind the complaint and implementing interim measures to ensure the safety and welfare of the person who made the complaint. It is necessary for a fair and reasonable process to give the alleged bully the ability to respond to the complaint, which may result in further investigation if new facts arise.
After any necessary investigation, the employer may decide to run a disciplinary process. If so, it must form clear and detailed allegations so that the alleged bully can properly respond. This is a crucial part of following a fair and reasonable process, which is required to justify any subsequent disciplinary action.
The employer may need to consider suspending the alleged bully while it investigates the allegations and/or runs a disciplinary process. Before taking any steps to suspend, the employer should review the employment agreement to determine whether there are any restrictions or processes that must be followed when proposing suspension.
After the investigation, if the complaint is upheld, the employer will need to consider the appropriate sanction, propose this to the alleged bully and give them the ability to respond before a final decision is made. Depending on the situation, a formal warning or other disciplinary action may be appropriate.
Regardless of whether or not the complaint is upheld, the employer should also consider ways to address the bullying and protect the person who complained from further bullying to help the people involved return to a functioning working relationship. This could involve mediation, changing their working arrangements, or addressing other organisational issues that contributed to the complaint.
What should be done if the allegation of bullying is made against the business owner?
The alleged bully should not be in charge of dealing with the allegation: the investigator should be a neutral person within the business. If this necessitates calling in external advice, organisations such as WorkSafe can be helpful. MBIE also has a free confidential mediation service which can act as a neutral third party. Potentially this could include the employer, employee complainant(s) and the alleged employee bully. Facilitation in this type of confidential forum that focuses on changing behaviours can achieve good outcomes as it does not rely on an admission of bullying to succeed.
Bullying is a complex issue and often difficult to prove. Any process that does not conclude bullying can result in re-victimising the victim and perceived approval of the bully’s behaviour. In simple terms, employers have an obligation to protect employees from harm, including from another employee’s behaviour. It may be best to forget trying to label the harmful behaviour ‘bullying’, and instead focus on how to change or protect employees from that behaviour. That requires investigation, and we recommend legal advice before embarking on that employment process.
