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WORKSAFE BULLYING: MISS IT AT YOUR PERIL

Written by Jim Roberts and Shukti Sharma on March 26th, 2014.

Bullying is recognised as detrimental to a person’s physical or mental wellbeing.  Employers have contractual and statutory duties to provide a safe workplace, and employers ignore bullying at their peril.  WorkSafe has recently released guidelines for recognising and dealing with bullying. 
 
What is bullying, and does your workplace have a policy to address it?  If employers ignore bullying they risk opening themselves up to costly breach of contract, personal grievance claims or a health and safety prosecution.  However, recently published guidelines provide employers with the knowledge and ‘how to’ for nipping bullying in the bud.
 
WorkSafe New Zealand (“WorkSafe NZ”) and the Ministry of Business, Innovation and Employment (“MBIE”) have released Best Practice Guidelines for Preventing and Responding to Workplace Bullying (“Guidelines”) in order to address the issue of bullying as a workplace hazard. 
 
The Guidelines begin by addressing the question of what constitutes workplace bullying, and how it can be recognised.  Following a series of definitions and examples, the Guidelines outline the tools and options that are available to both employers and employees to combat bullying in the workplace.
 
Workplace bullying defined
 
The Guidelines define workplace bullying widely as:
 
“repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. 
 
Unreasonable behaviour is identified by reference to what a reasonable person in the same circumstances would find unreasonable.  The Guidelines explicitly exclude certain acts from the definitions including management-related actions (provided they are delivered in a reasonable way), single incidents of unreasonable behaviour, and constructive feedback and legitimate advice or peer review.  However, the Guidelines warn against an escalating series of single events.
 
The Guidelines also list examples of the types of workplace bullying.  While these examples incorporate the wider understanding of bullying by colleagues, managers and clients, they introduce a new concept of “institutional bullying.”  Institutional bullying refers to the norms, culture, and practices of an organisation, that allow offensive or stress causing behaviour or promote work structures, practices, policies or requirements which unreasonably burden staff without concern for their well-being, and expectations that cause unwarranted strain on employees.
 
Impact on Employees
 
The Guidelines promote a proactive approach to dealing with workplace bullying.  They provide a set of proactive steps to enable employees to identify bullying behaviour.  The Guidelines recommend that employees start by using informal solutions (such as talking to a trusted person or to the bully).  Failing informal resolution, the employee should utilise any formal processes or employer policies that are available (such as speaking to their manager, human resources advisor or laying a formal complaint).  The Guidelines make it clear that the employees and employers are equally responsible for taking a stance against bullying.
 
Impact on Employers
 
Employers who neglect to deal with complaints of workplace bullying risk breaching a number of statutes.  The Guidelines specifically mention:
 
  1. The Employment Relations Act 2000 (ERA):  An employer may be in breach of the ERA where they have failed to uphold their duty of good faith or conducted their business in a way that has destroyed or damaged the relationship of trust, confidence and good faith between the employer and employee.
  2. The Health and Safety in Employment Act 1992 (HASIE):  Employers have a general duty to provide a safe working environment and ensure that employees are not exposed to hazards.  Section 2 of the HASIE defines hazards to include behaviours that may constitute an actual or potential source of harm to another person.
  3. The Human Rights Act 1993:  The Human Rights Act makes all forms of discrimination illegal.  An employee can seek recourse through the Human Rights Commission where they have been subject to discrimination.
 
In addition to the statutes mentioned in the Guidelines an implied term requiring employers to provide a safe work place has been recognised in all employment agreements since 1891. 
 
The Guidelines are supported by research that shows the negative impact of bullying on the workplace environment and productivity.  Bearing this in mind, the Guidelines provide useful resources for employers in the form of flowcharts, bullying cost calculators and template policies.  The tools are intended to aid employers in identifying any weaknesses in their company policies and culture, and promote an active approach to creating a healthy work environment.  Of course, it is important that employers tailor such documents and policies to their specific workplace.  A “one size fits all” approach is doomed to failure.
 
Going forward
 
The Guidelines should be taken seriously by employers.  Failure to comply with the Guidelines will potentially open employers up to the risk of employment disputes and health and safety investigations.   
 
Now that the Guidelines have been released, employers should take the opportunity to consider their policies, processes, and workplace environments.  If employers do not have bullying policies, or no policies at all, then we strongly recommend they consider implementing a bullying policy consistent with the Guidelines.  As always, best practice is to take a proactive approach.
Topics: Employment Law
 
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