David Grindle: Employment law - beating bullying and harassment at work

Bullying and harassment is a health and safety risk, writes employment law specialist David Grindle. Photo / Getty Images

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How would you feel if you were constantly publicly criticised, yelled at or regularly had your work discussed in front of others in a detrimental and humiliating manner? While this might seem par for the course for a politician these days, if it's happening in the workplace, then it's bullying.

Bullying and harassment of all kinds is an increasingly common workplace employment issue. Often the evidence for bullying is not as obvious as these examples, but more nuanced.

Thankfully, we are slowly but surely eroding the historic belief that bullying is a behaviour cured by a spoonful of cement and a more robust attitude. Our workplace reflects our communities, and in both, the kinds of behaviours that are harmful to other people are no longer tolerated. Employers need to take steps to ensure their workplaces are safe for employees.

Workplace bullying can result in a personal grievance, specifically:

• unjustified action of the employer (tolerating or encouraging bullying) causing a disadvantage to the employee, and/or

• unjustified dismissal.

It can also amount to a breach of good faith, as employers must be active and constructive in establishing and maintaining a productive employment relationship.

Employers are required (by both the Employment Relations Act 2000 and the Health and Safety at Work Act 2015) to manage health and safety risks arising from their work as far as reasonably practical.

Bullying and harassment is a health and safety risk which can create dual liability for an employer.

It is crucial for businesses to create a workplace that:

• provides employees with a voice and an ability to articulate their concerns about workplace bullying and harassment in a simple way

• exhibits good relationships between staff and models appropriate behaviours, and
has a system that identifies early behavioural problems and has speedy ways to resolve those problems.

Worksafe New Zealand's definition of workplace bullying is the most widely used in NZ, and describes it as:

"Repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm."

There is often friction between the definition of bullying and, for example, a manager setting high performance standards or providing constructive feedback and legitimate advice.

However, fear of being called a bully should not prevent a manager from requiring reasonable instructions to be carried out by an employee.

Remember that reasonable management actions delivered in a reasonable way do not constitute bullying or harassment.

Technology has also made it easier for bullying and harassment to occur. Accordingly, good policies and procedures, such as a code of conduct and documented complaints process, are vital to a successful business.

Dovetailing these policies with a vision and values for the workplace heightens the importance of employees, and antisocial behaviour leading to bullying is less likely to thrive.

• David Grindle is director in charge of the employment law team at WRMK Lawyers. He has practised in this area of the law for 17 years.