Colin Ross, Community Lawyer (Taken from Wellington Community Law Newsletter Dec 2010)
How serious is workplace bullying and why is it such a hot topic? A recent survey found that one in five New Zealand workers had at some stage been the victim of workplace bullying. Significantly, the survey identified that 25 per cent of victims and 20 per cent of witnesses of bullying left the organisation rather than confront the problem.
As many attendees at our recent Law for Lunch seminar commented, workplace bullying can be extremely subtle, insidious and persistent. It results in humiliation and distress for victims, and may interfere with their work performance. It includes a staggering range of behaviour, such as the phenomenon of ‘mobbing’, when workers gang up on managers or fellow employees. Perpetrators attempt to gain power over co-workers who threaten their dominance. Bullies create a dysfunctional work environment: to survive, co-workers are drawn into a vortex of collusion and manipulation. Bullies need cohorts. Cohorts cooperate with the knowledge that they are one step away from becoming a victim themselves. In many cases, bullying-type behaviours remain hidden, and victims would rather resign than confront the perpetrator.
There is currently no legislative definition of workplace bullying. Under Section 6 of the Health and Safety in Employment Act 1992, an employer is required to take all practicable steps to ensure the safety of employees while at work, including protection from both physical and psychological harm.
Recent cases before the Employment Relations Authority (ERA) have supported the decisions of employers who have dismissed bullying employees. However, the ERA has also determined that strict or hard management does not constitute bullying. For example, an employee who is undergoing performance management that is being conducted in a fair and reasonable manner, would not be able to make a claim of bullying. In some cases, the employee has been found to be overly sensitive to behaviour that falls well within the range of what could be expected in a normal workplace.
In a widely publicised case, a manager at The Warehouse complained about her dismissal after her employer found that she had been bullying co-workers. Four staff members had complained that they had been subject to or had witnessed bullying behaviour by the manager, including talking down to people, intimidating and publicly humiliating them. Significantly, none of the complainants was willing to confront her directly and only reported the behaviour to senior management while the manager was on leave. All four staff members eventually resigned. The ERA concluded that the manager’s behaviour was a risk to the health and safety of other employees. Additionally, the employer had followed a fair and proper procedure and was justified in its decision to dismiss her.
Does New Zealand need a legislative definition of workplace bullying? Obviously, bullying behaviour is not restricted to the workplace, but is a major issue throughout society, including in families, schools, educational institutions and resthomes (from the cradle to the grave). Bullies are finding new ways to perpetrate their behaviour by using new technology (text bullying is a clear example). Any legislative definition of workplace bullying would have to take a relatively narrow view of a behaviour that features through all levels of society. We would suggest that, as more and more cases come before the courts and the ERA, judicial interpretation of bullying will become clearer, and may prove to be more flexible than any legislative definition.
Regardless, eliminating a bullying culture within an organisation involves a strong commitment at all levels. Organisations need good policy, an effective complaints procedure, leadership role modelling, support for victims of workplace bullying, and workplace education. In the meantime, websites such as www.bullyonline.org/workbully provide valuable information and include steps that employees can take to ensure they don’t become victims of this scourge.