Bullies beware new guidelines

Happy and healthy employees perform better. Photo/Thinkstock

WorkSafe New Zealand has released its Best Practice Guidelines on Preventing and Responding to Workplace Bullying (Guidelines). The Guidelines are supported by a set of online tools which can be used by both employers and employees to help deal with workplace bullying and respond to situations before they get out of hand.

What is bullying?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 Guidelines also provide guidance on what behaviour does not constitute bullying, for example one-off instances of rudeness or reasonable management actions.

The Guidelines profile different types of workplace bullies, and different types of workplace bullying. Bullying does not have to be personal, with the Guidelines introducing the concept of 'institutional bullying', which can occur when a workplace's practices, structures or expectations place unreasonable burdens on employees. One interesting example of 'institutional bullying' cited is pressure placed on employees at banks in Christchurch, who were expected to meet nationally-applied sales targets after the earthquakes.

Why is bullying the employer's concern?It is no secret that happy and healthy employees perform better, and are more productive. Furthermore, employers who fail to appropriately deal with bullying run the risk of breaching a number of legal obligations, including under the Employment Relations Act 2000 (ERA), and the Health and Safety in Employment Act 1992 (HSE Act).

Under the HSE Act, employers have to ensure employees at work are not exposed to hazards. This includes bullying. Employers can be subject to fines of up to $500,000 and imprisonment of up to two years for failing to keep employees safe at work.

Alongside the risk of criminal prosecution, by failing to address bullying in the workplace employers can also be at risk of a personal grievance claim for unjustified disadvantage from 'bullied' employees. At worst, an employee could claim constructive dismissal, where the employee resigns because they no longer feel they can put up with the bullying. There is also the risk of a breach of contract, being the implied obligation in every employment agreement to provide a safe workplace. A successful personal grievance claim on any of these grounds could result in orders for reimbursement of lost wages, compensation for hurt and humiliation, and penalties of up to $20,000 under the ERA.

The Guidelines also highlight the effect bullying can have on an employer's business, for example increased absenteeism and low morale, resulting in impaired performance.

How can the Guidelines help?The Guidelines provide helpful tools and tips for both employees and employers on preventing and managing bullying.

Advice for employees includes how to assess whether you are being bullied, tips on dealing with stress, and a number of low-key solutions which can be employed against bullies.

Advice for employers includes process or system controls which can help to reduce instances of bullying, information on investigation processes and a number of resources, including templates and policies.

A number of online tools also accompany the Guidelines. These include a calculator tool for employers to assess the cost of bullying and a workplace assessment tool that measures organisational culture with a view to preventing bullying.

A copy of the Guidelines can be found on the Worksafe New Zealand website. Employers should use the Guidelines when revising their employment policies and procedures designed to confront and deal with workplace bullying.

Employment law advice is a member benefit of Federated Farmers. If you are a member and have any questions regarding bullying in the workplace, or how these Guidelines will affect you or your business, call 0800 327 646.