Defining workplace bullying proves trickier than it seems
Workplace bullying has become a regular issue in employment law.
Last year we talked about what constitutes workplace bullying. By outlining the scope of the term, both employers (and employees) will know what is and is not acceptable behaviour.
The Employment Relations Authority has not given an exclusive definition of workplace bullying but instead has given examples of what does and do not constitute bullying.
Being "mean" to an employee, using derogatory comments, rude remarks, and causing the employee general unhappiness does not usually reach the threshold of being workplace bullying according to the authority.
What does amount to bullying is overt physical threats, such as aggressive gestures, or repetitive, abusive, offensive and intimidating abuse or threats that go beyond a stressful working environment or a mere personality clash.
Defining workplace bullying
The problem with bullying is that the courts find it hard to define. Enter WorkSafe New Zealand's recently released guidelines.
WorkSafe high hazards and specialist services general manager Brett Murray said "the guidelines provide a clear definition of bullying - a first for New Zealand". Bullying is defined as: "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety."
The "risk to health and safety" is described as the physical and mental effect on people, resulting in increased stress levels, decreased emotional wellbeing, reducing coping strategies and lower work performance. It can include any repeated and unreasonable behaviour, including belittling remarks, dirty looks, public humiliation, verbal abuse and unwanted sexual approaches.
A single incident of unreasonable behaviour is not considered workplace bullying but could be if it escalates. Although workplace bullying could be overt, it was often subtle and prevalent in static workplaces such as offices.
As a sort of "code", the risk to health and safety must be unreasonable, repeated, and health endangering.
Interestingly, bullying includes not just personal bullying, but institutional. This can involve unreasonable workplace structures and deadlines that put an unfair burden on an employee. An example of institutional bullying given in the guidelines was of workers at Christchurch banks who were still expected to meet sales targets after the earthquakes.
This may be an indication of the "extreme" circumstances required in a case of institutional bullying. One "urgent" deadline that puts pressure on an employee is not likely to suffice.
Despite the assertion by WorkSafe that the guidelines provide a "clear definition", I have my doubts. Bullying can come in vast and varying forms of behaviour. The scope of the definition illustrates this. What the guidelines define of workplace bullying; anything from subtle "dirty looks", to belittling remarks, to unreasonable deadlines, encompasses behaviours far wider than what the courts have said amounts to workplace bullying.
Consequently, this wide definition poses a potential "floodgate" of cases where bullying is alleged. What one employee may put down as a "bitchy" employee who simply doesn't like them, another employee may argue that they are being bullied by them. There will always be a "grey area" with bullying, that is really up to the authority to determine on the circumstances of each case.
An aid for everyone
What does make these guidelines useful is that they seek to encourage employers and employees to try to resolve the issues themselves. Reaching workplace-based solutions will often be a less costly approach to resolution rather than seeking outside assistance through WorkSafe NZ or the mediation service offered by the Ministry of Business, Innovation and Employment.
The guidelines are found on WorkSafe NZ's website, as well as online tools for recognising bullying behaviour, solutions for dealing with bullying and preventing it.
Both employers and employees should be aware of these guidelines and self-help tools.
Include the link to the WorkSafe website on your business home page, or in the staff policy handbook.
An increased awareness of what is and is not acceptable will help parties be proactive in dealing with bullying when it arises, and avoid further legal action.
Whether this new definition of bullying is applied or given weight by the authority remains to be seen. At this early stage, the guidelines pose a more practical tool for employers and employees in resolving the issues, rather than an aid for the court.
* Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email her at Mary-Jane.Thomas@prlaw.co.nz.
The Southland Times