OPINION: Bullying. It is a commonplace issue in employment law. But what exactly is bullying, asks Mary-Jane Thomas in Work to Rule.
A recent decision of the Employment Relations Authority (ERA) addressed this very question.
The case involved a Mr M who was terminated from his employment for three purported incidences that the employer said constituted serious misconduct.
One of the allegations, and the main issue addressed by the ERA, was bullying.
Two fellow employees gave evidence at the ERA that Mr M, who was their superior, had repeatedly bullied them throughout their years working with him.
Although Mr M challenged the allegation, the ERA determined that there was ample evidence for the allegation to be upheld, and accordingly found that Mr M's dismissal was justified.
In finding that Mr M had bullied his fellow employees the ERA, helpfully, defined what bullying is.
Bullying is characterised as “a form of personal or supervisory/managerial harassment, which is characterised by repeated and persistent, offensive, abusive, intimidating, malicious or insulting behaviour such that the recipient suffers detrimental effects to the feeling of safety, wellbeing and general employment of their work environment”.
The ERA found that Mr M was in a position of power in relation to his employees, that he had committed repeated acts of intimidating or insulting behaviour and this behaviour had undermined the other employees' feeling of self worth.
Although this definition may be helpful for an employer investigating an allegation of bullying, for me the most important aspect of the decision was the comment by the ERA member that just because a co-worker says they are bullied does not make it so.
While in this case the ERA found there was a long history of behaviour that it characterised as bullying, an employer should always be cautious of finding that an employee has bullied a fellow employee or even raising the allegation of bullying.
Where an employee comes to an employer and raises bullying allegations, the employer should get sufficient details about the conduct said to be bullying before raising the issue with the “bully”.
In the case of Mr M the two fellow employees were able to point to specific instances of behaviour that they thought was bullying - and which the ERA agreed.
This is not to say that they did not give evidence of the fact that there were other instances which they could not adequately recall, but these were backed up with the specifics.
My advice to any employer who is worried about employee bullying is to get specific examples of what is said to be bullying before taking the matter further.
» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to email@example.com.
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