Law Talk: Work bullying complaints rising

Workplace bullying is an increasingly common grievance that employers have to face today.

All too often we hear from employers that an employee has quit, or been dismissed, and the employee has then made a claim for bullying, which the employer never knew about.

Disciplining an employee, closely managing their performance, or providing constructive feedback is not bullying. However, disciplining that employee in front of others, setting unrealistic performance standards or intimidating, belittling or abusing an employee is.

So, how do employers get the balance right?

The first step is to acknowledge that bullying is an issue and can have severe mental health ramifications.

Bullying may be costly to a business, through increased employee leave, low productivity, or distractions to resolve staff squabbles or personal grievance claims.

A bullying allegation must be taken seriously. Employers should talk with the complainant about their concerns.

It may be that an employee simply wants a forum to resolve things. Perhaps the employee would like an independent investigation.

Crucially, an employer should not simply "wave off" a complaint, or favour one employee over another, before any allegation is explored.

WorkSafe has defined bullying as repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm.

This definition does not cover one-off or occasional instances of rudeness or tactlessness, or a single incident of unreasonable behaviour or personality clash.

If an employee wishes to mount a claim, then they must first bring their concerns to the attention of their employer.

Employees need to be responsive and communicative and follow the complaint process set out in any employment agreement.

Generally, an employee cannot simply quit and then later say for the first time they were bullied and forced to quit.

We have seen a trend in employees raising the allegation of bullying as a health and safety matter.

However, just last month, Worksafe released a statement determining that bullying allegations that involve an employment relations issue should be dealt with in the Employment Relations Authority.

Unless there is a diagnosis of serious mental harm, and that diagnosis can be attributed beyond reasonable doubt to workplace bullying, WorkSafe is unlikely to step in.

Notably, WorkSafe has not prosecuted any bullying case to date.