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September 2004

Work Place Bullying

The potential for personal grievance claims

Given the lack of comprehensive research into workplace bullying, it is difficult to assess the existence and/or prevalence of this phenomenon in the New Zealand workplace.

Statutory recognition and protection from workplace bullying is limited to amendments to the Health and Safety in Employment Act 1992 (HSE Act).
These amendments came into force on 5 May 2003 placing robust general duties on both employers and employees. Importantly, the HSE Act now places specific duties on employers in relation to “hazard management”. This arguably includes workplace bullying.

What is workplace bullying?

Workplace bullying is repetitive health endangering behaviour that amounts to mistreatment having a detrimental effect on an employee’s dignity, safety and well being. Typically, such behaviour includes:

  • · Physical behaviour.
  • · Hostile verbal and non-verbal communication, including threats.
  • · Withholding of resources.
  • · Abuse of power.
  • · Isolating and degrading behaviours including ignoring and marginalising staff.

Too often, bullying behaviour can be minimised and ignored by employers who take the view that it is acceptable management of employees to be “tough” or “straight talking”. Similarly, complainants may simply be told that they need to “harden up”. Minimising or downplaying the seriousness of workplace bullying and the effects that it can have on employees exposes the employer to either a personal grievance or a breach of the HSE Act.

The effects of bullying

A typical response is for the bullied employee to leave. The risks and costs for employers associated with workplace bullying includes; decreased productivity, increased absenteeism, high staff turnover, costs related to employment of temporary staff, recruitment and training.
Additional costs include exit packages, settlement agreements for complainants of workplace bullying, costs of litigation and associated legal fees.

Bullying as a hazard

The Health and Safety and Employment Act 1992 places duties on employers in relation to “hazard management”. Amendments to the Act in 2003 extend the definition of “harm” and “hazard” to include “stress” and “fatigue”. These are the primary symptoms suffered by an employee who is the target of a workplace bully.

Therefore, where workplace bullying is alleged, the employer has an obligation to eliminate that hazard from the workplace.

What should employers do?

Employers should implement a policy of zero tolerance for bullying. Procedures should also be put in place for dealing with any allegations of bullying by an employee.

Failure to address allegations of bullying leave an employer facing potential liability for personal grievance claims under the Employment Relations Act 2000 and/or claims for breach of their statutory duty to provide a safe and secure workplace under the Health and Safety and Employment Act 1992.