New guideline defines workplace bullying

Bullying is a significant and underestimated risk in modern workplaces. It is a hidden problem but not one that employers can afford to ignore.

Left unchecked, workplace bullying can result in lost productivity and costly litigation. Despite this, there is no specific law in New Zealand prohibiting workplace bullying, and employees have had to rely on bringing claims using other legal avenues, such as harassment, discrimination, or a breach of health and safety obligations.

But this area is developing. In the last six months New Zealand and Australia have poured significant resources into rejuvenating their legal frameworks relating to bullying. Australia now has specific bullying legislation covering not only employees but "workers" generally, including contractors and volunteers. From the start of this year, Australian courts have had the power to make "stop" orders relating to bullying.

The first order was made late last month and required the alleged bully to, among other things, "complete any exercise at the employer's premises before 8am" and "make no comment about the applicant's clothes or appearance". Sounds like the office gym bunny may have been making snarky comments about a colleague's dress while doing push-ups in the staff kitchen.

Closer to home, Worksafe NZ has recently released guidelines based on the developments in Australia. While not as advanced as Australia's regime, for the first time, New Zealand has a definition of what bullying is - repeated behaviour which is unreasonable and creates a risk to health and safety.

This definition will set a benchmark and shape the way that personal grievances based on bullying conduct are viewed by the courts in New Zealand.

The guidelines provide examples of behaviours that could potentially be considered bullying, including not only overt actions, but behaviours that are more subtle and more difficult to prove, such as unjustified criticism or complaints, withholding information that is vital for the performance of a role, setting unreasonable deadlines or constantly shifting them, or setting tasks unreasonably below or above an employee's skill level. The guidelines also set out how to prevent and respond to bullying.

The importance of acting quickly in response to a bullying allegation was highlighted in a recent decision of the Employment Relations Authority.

Dr Paul Hirini, a clinical psychologist at Bay of Plenty DHB, claimed that the DHB had failed to investigate whether he was bullied by his colleague Gail Morley following an opinion he gave about a case file at a team meeting.

Hirini said his team leader, Julie Smith, supported the bullying. When the two were interviewed (nearly 3 months after Hirini raised his complaint) both denied the bullying and conversely said that Hirini was the bully, and made their own formal complaints. The following month, other colleagues also came out against Hirini, alleging aggressive and intimidating behaviour.

The DHB suspended Hirini and allowed him to work from home while it investigated. Around the same time, the DHB raised performance issues about Hirini's case management, engaged an independent consultant to perform his duties and forwarded the matter to the Psychologists Board. In June 2012, nearly five months after raising his bullying complaint, Hirini resigned, claiming that the forgoing events left him no safe choice but to leave. He claimed he had been constructively dismissed as the result of bullying.

The authority concluded that the cumulative effect of procedural failures by the DHB had forced Hirini's resignation. The authority said that the DHB should have given higher priority to Hirini's complaint, or appointed an investigator more able to give it prompt attention. Hirini received three months' lost wages and $7000 compensation for hurt and humiliation.

Would the result for the DHB have been any different under the new definition of bullying? In some respects it may have been analysed differently - Hirini's initial complaint concerned a single bullying incident, but with a broad assertion that a "pattern" of bullying had occurred. Although Hirini eventually provided more details about this alleged pattern, it is important to remember that under the guidelines a single incident of bullying won't meet the test, no matter how serious.

The authority also raised doubts about whether the workplace had been rendered "unsafe" for Hirini, another requirement of the new definition of bullying. The authority found that Hirini had become sensitive and unduly suspicious following his initial complaint. However, the authority went on to find that the DHB breached its obligation to take reasonably practicable steps to provide him with a safe workplace by not dealing with his concern about continuing to work with the employees he had complained about, and that this resulted in Hirini's constructive dismissal.

The new Worksafe NZ guidelines have put the spotlight back on bullying, and they are a reminder that employers need to be prepared with an up-to-date and appropriate workplace bullying policy and accompanying training for managers. It is also timely to revisit the basics - such as ensuring that employees have clear job descriptions, targets and regular performance reviews.

The guidelines have provided definition and clarity to an otherwise murky area. They should assist both employers and employees in understanding what does and does not constitute bullying, and if it does occur, what to do about it. One particularly useful take-out from the guidelines is that we should not be too quick to just "label" conduct as bullying, and the value of getting someone independent (such as a colleague or friend) to provide an objective assessment.

This is a step in the right direction to taking a more transparent and measured approach to managing workplace bullying.

Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers.