What is Bullying, and what are an employer’s obligations to prevent it?
Bullying at work is a huge bugbear for employers. Section 6 of the Health and Safety in Employment Act 1992 (HSE) requires that an employer take all practicable steps to ensure the safety of employees at work. Failure to properly address bullying of an employee at work is a breach of the HSE, which can result in a prosecution under section 50, for which an employer faces being fined up to $250,000 for a serious breach.
On 20 February 2014, WorkSafe NZ issued Best Practice Guidelines on bullying in the workplace to assist employers with preventing and responding to bullying at work.
From 4 April 2016 when the Health and Safety at Work Act 2015 came into force, by definition a “Person Conducting a Business or Undertaking” (PCBU), will have as its primary duty of care under section 36, the safety and health of workers at work “so far as is reasonably practicable”. The section further states that “These duties require protection from both physical and psychological harm” and brings bullying into focus even more.
What constitutes bullying? One instance of unreasonable conduct is not bullying, nor would an instance of one-off rudeness, tactlessness, setting high performance standards, constructive feedback, or even disciplinary action per se, be bullying.
Bullying behaviour requires that it be repeated and that it create some health or safety risk to an employee. Bullying can be horizontal, which is where it occurs between peers at work, or it can be vertical where subordinate staff are bullied by senior staff or vice versa.
Bullying can be divided into three different categories: Direct, Indirect and Institutional bullying. While there is an extensive list of examples of each, some examples of direct bullying would be behaviour such as physical or verbal abuse or making threats of violence against an employee, making insulting, undermining or belittling remarks. Examples of Indirect bullying would be micro-managing an employee, giving inconsistent instructions, undervaluing an employee’s contribution, consistently making unjustified criticism of an employee’s work, and sabotaging an employee by not providing them with training, direction or support or setting them unachievable tasks, or making threats about their job security. Institutional bullying would occur where an organisation’s culture and practices cause offence and undue stress to an employee, or where workplace structures, practices, policies or requirements place unreasonable burdens on the employee without concern for their wellbeing by for example by setting unmanageable case loads, unrealistic deadlines or targets that are impossible to meet.
Numerous cases over the last decade have involved bullying claims. One such is the case of Evans v Gen-I Ltd where the Authority cited the definition of bullying as “repeated oppression, psychological or physical, of a less powerful person by a more powerful person”. And it said further that “Bullying may be seen as something that someone repeatedly does or says to gain power and dominance over another, including action to cause fear and distress. The behaviour has to be repeated on more than one occasion and there must be evidence that those involved [either] intended [fear] or felt fear”
In a 2008 case, Crutchley v Chief Executive of the Ministry of Social Development, this was echoed and it was held that “[definitions of bullying] uniformly refer to repeated unreasonable behaviours directed towards an employee with the intention of causing harm”.
How best to prevent and manage bullying in the workplace? All complaints of bullying should be taken seriously by management. A strong anti-bullying culture with Policies on bullying and Codes of Conduct should be a priority for all employers, and companies need to have clear and easy-to-understand processes in place to manage complaints.
The monetary cost and executive time that is involved can be substantial where an employer has to defend a personal grievance claim brought by an employee on grounds of bullying, or worse yet has to defend a prosecution for failure to keep an employee safe from bullying at work.
The beat safeguard is to prevent bullying altogether and stop it from happening. Where it arises, seek advice and deal with it immediately!
The writer acknowledges the WorkSafe New Zealand Guidelines and John Rooney’s paper “Workplace Bullying and Harassment: Minimising the Risks” for references to- and for reported extracts and information from these sources.