The Crown Entities Act 2004 s118 requires Crown entities to be ‘good employers’ to operate personnel policies necessary for the fair and proper treatment of employees in all aspects of their employment, including ‘good and safe working conditions’. The New Zealand Court of Appeal has noted that the duty to take reasonable steps to maintain a safe workplace is an implied term of employment contracts.
The Universal Declaration of Human Rights enshrines the right to work in Article 23. Discrimination at work is prohibited in the same article. Harassment and bullying, with their potential to denigrate and humiliate an employee, strike at the free exercise of this right.
The Harassment Act 1987 provides both criminal and civil remedy for people who have been harassed. The act recognises that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. It ensures that there is adequate legal protection for all victims of harassment.
The Health & Safety in Employment Act 1992 makes explicit that employers have an obligation to provide a safe, secure work environment. The legislation requires employers systematically to identify hazards in the working environment. Bullying and harassment are stressors that may lead to reports of stress, and may thus constitute hazards under the 2003 amendments to this Act which extended the definition of ‘harm’ to include physical or mental harm caused by work related stress.
The Human Rights Act 1993 prohibits discrimination on 13 grounds. Harassment related to any one of these grounds could be seen as a form of discrimination. There are specific provisions related to racial and sexual harassment and victimisation. An employee may make a complaint both about the employer and the offending employee.
The Employment Relations Act 2000 prohibits discrimination on 13 grounds and has specific provisions related to racial and sexual harassment. An employee can also bring a personal grievance claim under ‘unjustifiable disadvantage’ or ‘unjustifiable dismissal’ and frame the claim around the already recognised duties implicit in the employment relationship, such as the duty to provide a safe workplace, and the duty of trust and confidence.
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.
Bullying can have a serious impact on a workplace. For an employee who is targeted by workplace bullying, the workplace can become a place to fear. For an employer, the hidden costs of such behaviour can quickly mount up. Increased job dissatisfaction, workplace stress and staff turnover all lead to a less productive workplace, and an employer is also at risk of the costs associated with legal claims by employees who have been bullied.
This discussion will tackle the fundamental issue of what constitutes workplace bullying. It will then outline the legal rights and obligations of employees and employers when workplace bullying occurs.[Read more…]