Workplace bullying — what are my obligations?

Author: Brian Nathan (Duncan Cotterill)

Employer and employee obligations

Under the new Health and Safety at Work Act 2015 (HSW), a person conducting a business or undertaking (a PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while at work. This includes protecting workers from harmful behaviour while at work such as bullying.

An employer’s failure to deal with issues in the workplace could lead to legal liability, including prosecution under the HSW, or more commonly, a personal grievance claim brought by affected employees.

Employees should also be aware that they can be individually liable under both health and safety legislation and human rights legislation if they have bullied others in the workplace.

What is bullying?

What constitutes bullying is not always easy to identify. Case law has shown that the line is far from clear between what is deemed bullying on the one hand, or blunt management on the other.

WorkSafe NZ’s guidelines on how to prevent and respond to workplace bullying provides the following definition of workplace bullying:

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

Repeated behaviour is persistent and can involve a range of actions over time. Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.

A single incident of unreasonable behaviour is not considered workplace bullying, but it could escalate and so should not be ignored.

Harassment and discrimination, which can be part of bullying, have their own legal remedies.

Regardless of the specific behaviour, bullying can have serious consequences in the workplace. It can lead to poor employee morale and reduced productivity due to absenteeism and turnover, so it is in an employer’s best interests to deal with any workplace bullying issues promptly.

The guidelines highlight the key bullying indicators of which employers need to be aware, such as staff complaints, productivity loss, absenteeism, grievances or a string of resignations.

How to deal with a bullying allegation

Where a bullying complaint has been received, or an employer is aware of potential issues, the employer has an obligation to fully and fairly investigate.

If bullying has occurred, employers must take appropriate steps. In many cases, this could include disciplinary action against the perpetrator(s) up to and including dismissal.

WorkSafe NZ provides useful guidance on addressing bullying complaints, including treating the matter seriously, acting promptly, ensuring non-victimisation, providing support to all parties, being neutral, communicating the process and the outcomes, maintaining confidentiality and keeping good documentation.

In addition to effectively responding to allegations of workplace bullying, employers should also take steps to avoid bullying. It is recommended that employers have documented policies and processes that emphasise the organisation’s commitment to preventing bullying, detailing an employer’s expectations of employees at work, how to raise concerns and details of how complaints will be investigated.

While many workplaces will already have these policies in place, the guidelines reinforce their need and importance. Policies should be reinforced, monitored and regularly reviewed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.