Managing Bullying in the Workplace

Posted by Madeleine on 17 November 2015
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Managing Workplace Bullying

Introduction

Workplace bullying is recognised as a workplace health and safety issue and a potential hazard. Not only can it affect an employee’s health and safety, but it can also have a detrimental impact on the health of the business, by impacting on productivity due to low staff morale, high turnover and increased claims of stress. Claims of workplace bullying appear to be on the increase and employers need to be aware of the issue and be pro-active in creating a bully-free culture.

Obligation to provide safe workplace

Employers have a legal obligation to provide a safe workplace.

Workplace bullying is not specifically defined in the Health and Safety and Employment Act or the Health and Safety at Work Act 2015.

The Health and Safety in Employment Act (“the Act”) however requires employers to take all practicable steps to ensure their staff are safe at work and in particular, they must take all practicable steps to:

-          Provide and maintain a safe working environment

-          Provide their staff with facilities for their safety and health while at work, and maintain those facilities

-          Ensure that machinery and equipment is safe

-          Ensure that staff aren’t exposed to hazards when in the workplace or when they working near the workplace and under the employers control

-          Develop procedures for dealing with emergencies

Under the Act “hazard” has a wide definition and includes anything that is an actual or potential cause or source of harm. Harm specifically includes “physical or mental harm caused by work-related stress”. It is acknowledged that bullying is a source of “harm” that creates a workplace “hazard”. Employers therefore have obligations to identify, eliminate, isolate and or minimise workplace bullying.

What is workplace bullying?

Unfortunately there is no single definition of “work place bullying”.

The recent best practice guidelines provided by WorkSafe New Zealand1 states that:

“Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”

The case law goes further with its definition and bullying usually involves:

-          Repeated actions (which are unreasonable)

-          Carried out with a desire to gain power or exert dominance

-          Carried out with an intention to cause fear and distress2

In the Employment Relations Authority case of Evans v Gen-i Limited3 bullying was defined in this way:

“Bullying may be seen as something that someone repeatedly does or says to gain power and dominance over another, including any action or implied action, such as threats, intended to cause fear and distress. The behaviour has to be repeated on more than one occasion and there must be evidence that those involved intended or felt fear”

A technical definition provided by Hayden Olsen4 is:

“Workplace bullying is unwanted and unwarranted behaviour that a person finds offensive, intimidating or humiliating and is repeated or significant enough as a single incident to have a detrimental effect upon a person’s dignity, safety and well being” 

What is not workplace bullying?

It is important that complaints of bullying are only made where bullying has actually occurred. It is therefore important that there is an understanding of what does not constitute bullying.

Workplace bullying is to be distinguished from:

-          Firm but reasonable management

-          Reasonable actions taken in reasonable manner by the employer to re-correct, counsel or discipline an employee

-          Valid criticism and feedback

-          Personality clashes

-          One instance of unpleasant behaviour from a colleague or manager is not bullying

Dealing with a complaint

Once workplace bullying is brought to the employer’s attention then there is an obligation on the employer to take appropriate action.

While an important aspect of assessing the complaint is the perception of the individual making the complaint, it is imperative to consider the full facts which may also include the conduct or behaviour of the complainant.

A complaint of bullying should be treated in the same manner as any other claim of misconduct and is subject to the same legal rules and principles of natural justice. The employer is obliged to act in good faith and provide a fair and just process which includes objectively assessing what has actually occurred.

Here are some key factors that you must consider:

-          Treat all matters seriously – assess them on their merits and facts

-          Act promptly and fairly

-          Ensure non-victimisation

-          Ensure support is available for all parties

-          Be impartial and actively avoid any personal bias

-          Communication is key – make sure you communicate the process and outcomes – to both parties

-          Maintain confidentiality

-          Keep good documentation

-          Chose the appropriate course of action to resolve the complaint

-          Treat both parties fairly – the accused has the right to be heard and access to relevant information

-          Investigations can be disruptive to business and it is important they are conducted fairly and applying the principles of natural justice

-          Increasing use of technology means that cyber bullying is also relevant

 The assessment of action required:

See: Assessment-of-action-required.pdf 

  • Low key approach – e.g. making the person aware of bullying policies
  • Less formal but direct – e.g. a person talks with person complained of and tries to work it out informally and confidentially
  • “Care-frontation” – e.g. Manager and person complained of and relevant employees meet to discuss the situation
  • More formal and direct – e.g. Manager to meet with the person and explain the behaviour and give them a chance to respond, or hold a mediation with the parties (run by an independent person)

Prevention is better than the cure

Best practice on prevention strategies include:

-          Developing a full harassment policy which outlines what is unacceptable behaviour and how staff can deal with complaints, and names of contact people

-          A formal step by step complaints procedure

-          Awareness training for all staff

-          External/independent support available for employees

-          Appropriate HR processes and policies

-          Grow a culture where workplace bullying is not accepted.

-          Define and develop clear values for the organisation

-          Monitor and measure workplace health

-          Respond immediately to complaints

Conclusion

It is fair to say that the number of workplace bullying cases have increased, signalling a greater awareness of the issue, as well as a problem with New Zealand’s work culture. In order to provide a safe workplace employers should be pro-active in implementing best practice prevention strategies. Employers also need to deal with any complaints promptly and take appropriate actions.

 

Footnotes:

  1. Best Practice Guide; Preventing and Responding to Workplace Bullying, WorkSafe New Zealand, February 2014
  2. Kneebone v Schizophrenia Fellowship Waikato Inc ERA Auckland AA31/07, 13 February 2007
  3. Evans v Gen-i-Limited, D King, ERA, 29 August 2005, AA 333/05
  4. Hayden Olsen Workplace Bullying and Harassment (CCH New Zealand Limited, Auckland, 2005) 8.