This week, “Bullying in the Police” has made headlines across New Zealand after allegations of a widespread bullying culture, led by senior staff members. These allegations may be shocking to the public. However, as employment lawyers, they are things we hear almost every day and bullying culture is not only contained to the Police.
Earlier in the year, the focus was on Parliament, after Debbie Francis found in her review a “systemic” culture of bullying and harassment in the Parliamentary workplace. In January, we learnt that bullying and harassment were rife within New Zealand’s fire and emergency services following an independent review, and of course, the legal profession was in the headlines last year.
In fact, WorkSafe estimates that between one in five and one in three New Zealand workers report bullying or harassment annually. Every industry and every employer is at risk of being the subject of the next “bullying” headline in the New Zealand media.
Under the Health and Safety at Work Act 2015 (“HSWA”), New Zealand employers have a duty to ensure that its workplace is safe for all its employees. If an employee is being bullied at work by their colleague, supervisor, manager, or any other person in the company; they are not safe. In employment law, bullying is taken very seriously. If an employee is being bullied, the employer is not only at risk of breaching the HSWA but also at risk of receiving a personal grievance.
WHAT IS BULLYING?
Bullying complaints are regularly used as a means of addressing instances where the complainant feels that they have been treated unfairly. Unfair behaviour, however, does not always amount to bullying. In fact, the term “bullying” is often used to describe a wide variety of situations, and it is often misused.
According to WorkSafe, workplace bullying is:
… repeated and unreasonable behaviour directed towards a worker or groups of workers that can lead to physical or psychological harm.
This definition of workplace bullying is widely accepted in law. Keywords in this definition are ‘repeated’ and ‘unreasonable’. Someone having one loud ‘blow up’ does not amount to bullying. Some examples of bullying include victimising, humiliating, intimidating or threatening behaviour, and may also include instances of harassment, discrimination or violence.
Workplace bullying is not defined as:
- One-off or occasional instances of forgetfulness, rudeness or tactlessness;
- Setting high-performance standards;
- Constructive feedback and legitimate advice or peer review;
- A manager requiring reasonable verbal or written work instructions to be carried out;
- Warning or disciplining workers in line with the organisation’s code of conduct;
- A single incident of unreasonable behaviour;
- Reasonable management actions delivered reasonably; or
- Differences in opinion or personality clashes that do not escalate into bullying, harassment or violence.
EMPLOYERS: How can you protect yourself?
As the WorkSafe estimates show, bullying and harassment frequently occur in the workplace, and employers can be unaware that it is happening. For this reason, it is vital that companies have clear procedures in place, both to limit the risk of these occurrences and to handle situations where bullying and harassment may have occurred.
Being a good employer involves:
- Actively handling these issues;
- Having clear procedures in place to manage these issues effectively as they arise;
- Having an effective system of reporting; and
- Establishing a culture which in no way condones bullying behaviour.
In some instances, a full systemic review may be required.
Without an effective system of reporting, companies are at risk of the same alleged failures of the Police. Although the Police have a complaints hotline, called “Speak Up”, many complainants were concerned that their complaints were directed to the very person who was bullying them. This does not promote a safe environment.
EMPLOYEES: I need help!
Next week, we will be addressing the bullying complaints process by providing guidance and options for both the complainant and the alleged bully. To receive a notification when this is released, please sign up to receive our newsletter.
FOR MORE INFORMATION
If you are an employer who has received a complaint of bullying, this needs to be managed effectively. This may involve an independent investigation being undertaken. Please let contact us if you need:
- Advice on a process that both supports the employees involved and also manages any legal risk to your organisation;
- An independent investigator to undertake a full investigation into complaints; and
- Assistance drafting and implementing policies and procedures to prevent these issues occurring and assist in managing them if they do arise.