Bullying is bad - for employers and employees

JAY LOVELY
Last updated 08:26 24/02/2014

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The concept of bullying - in particular in the workplace - has received a lot of media play recently and rightfully so.

Bullying can have serious effects, especially in the workplace because we spend so much time there. Employees can hate going to work and start thinking about changing everything. Employers lose money - both in terms of profitability, and possible damages and legal costs.

So I was surprised when asked by a mate what workplace bullying actually is, that it is not defined in legislation or by the Employment Court.

It should have been an easy answer but it was not.

There have been a few discussions in the Employment Relations Authority on this point, and a few authors have written commentaries, but each issue is taken on a case-by-case basis.

The common theme arising seems to be a series of repeated actions carried out with a desire to gain power or exert dominance, and done with the intention to cause fear and distress.

What is interesting is that it can go both ways. There have been cases where it has been management who have been abused by staff.

Looking at the case law examples of bullying, these included cruel and insulting and public comments about an employee's psychological problem, refusing approval for sales (for a commission only sales person), relieving an employee of many of his duties, calling out insults and threats, pushing and teasing.

But what is also clear from the decisions of the authority is that strict management or some kind of personality clash will usually not be enough to support a claim of bullying.

Looking at the case law - a condescending manner, negative tone of voice, complaints about an employee's work and exclusion from a meeting, were not workplace bullying.

This distinction is important.

A bullied employee may have a personal grievance against the employer; even if the employee has resigned, there is a possible claim if the resignation was actually caused by the employer's failure to deal with bullying.

Also any employment agreement contains certain fundamental terms implied by common law. These include a duty not to conduct a workplace in a manner that is calculated to damage or destroy trust, and to provide a safe and secure workplace (which includes safety from psychological harm).

Breaking a contract in this way can lead to a breach of contract claim, or an action in damages under another section of the Employment Relations Act (apart from the personal grievance provisions). So it pays to deal with it in a manner that will not cost money or mean you hate going to work.

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A couple of cases in this regard are relevant in my opinion.

The first one involved a recent action against a council.

The authority said senior management needed to be aware of the obvious distress of an employee - it was not enough to say an immediate manager did not tell them about it.

The next one sums up the law so well, I think, that I will simply repeat what the Employment Court said: "A fair and reasonable employer faced with repeated complaints should have undertaken a comprehensive investigation at the earliest opportunity, reached a fair conclusion on the complaints, kept her fully informed of the process, advised her of the decision and then taken steps to address the dysfunction".

So if you are an employee and you think you are being bullied at work, report the concerns you have and expect a result back pretty quickly. Be aware that not everything is bullying - be prepared to take advice that maybe you are a bit too sensitive.

Remember workplaces can be places where it is stressful for everyone and it is possible, even likely, you will come across someone you just do not get along with during your working life.

If you are an employer, do not tolerate bullying in your workplace. If there is a complaint, then act on it. Do not assume it is something that is simply between your employees - you have a duty to provide a workplace free of bullying for all of your employees.

Find out what the problem is yourself and put in place things you think will fix it - write everything down that you do.

■ This article is not legal advice. If you need legal advice on this matter, contact your lawyer. Jay Lovely is a senior solicitor at RSM Law.

- The Timaru Herald

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