Bullying at work

by The FindLaw Team

Workplace bullying is a problem in New Zealand, as it is in other countries. The term “bullying” is not defined in New Zealand legislation, however various definitions have been put forward in case law.

Unless the bullying has racial or sexual harassment undertones (and thus could be the type of harassment covered by the Human Rights Act 1993), bullying is generally dealt with as an unjustified disadvantage or dismissal under the Employment Relations Act 2000 or failure of an employer to provide an employee with a safe workplace under the Health and Safety in Employment Act 1992.

What is bullying?

“Bullying” and “bully” are emotive terms and it’s not uncommon for them to be used to be describe other situations, such as a personality clash or a forthright communication style, especially in workplace situations.

Bullying is not a personality clash, although it is sometimes wrongly labelled as such. A personality clash implies failings on both sides. Bullying, on the other hand, is deliberate behaviour on the part of the bully to undermine and control someone else. The person being bullied has nothing to do with, nor is able to avoid, being targeted.

Conversely, a situation that is described by employees or managers as a personality clash may in fact be a case of bullying. It is therefore best to investigate by looking at the behaviour and the effect on the parties involved, rather than starting with any pre-determined “label”.

Both bullying and personality clashes have an undesirable effect in the workplace and should be dealt with to improve staff morale, emotional safety, and productivity. However, the way they should be dealt with is different due to the different dynamics involved.

The definition for workplace bullying used by Workplace Against Violence in Employment (WAVE) is “unwanted and unwarranted behaviour, that a person finds offensive, intimidating or humiliating and is repeated so as to have a detrimental effect upon a person’s dignity, safety and well-being” (Workplace bullying and harassment: A toolbox for managers and supervisors (2005), Hadyn Olsen, WAVE).

Workplace bullying is a situation where someone (the perpetrator) picks someone else (the target) and deliberately treats them in a way that makes them demoralised, self-doubting, and intimidated. Often the target eventually resigns.

Some types of bullying behaviour is obvious, such as shouting, abusive language, hostility, constant criticism, rages, threatening behaviour and even physical abuse. However, bullying can be much more subtle, including withholding information or resources, ignoring the target, starting rumours, exclusion, teasing, setting impossible deadlines, and unfriendly looks and body language.

Signs of bullying

It takes a certain type of person to be a chronic bully. Characteristics of a typical bully include the following:

  • Very ambitious;
  • Lack of empathy;
  • Impulsive;
  • Impatient;
  • Confident and self-assured;
  • Think they are superior;
  • Charming and convincing;
  • Dominant and controlling;
  • Power-seeking;
  • Belligerent and vindictive;
  • Judgmental and critical;
  • Condescending and sarcastic;
  • Give the impression that they are indispensable;
  • Prefer working alone to working collaboratively as part of a team;
  • Good at lying and covering their tracks;
  • Highly skilled and get good results from their subordinates;
  • Take things seriously; and
  • Unable to laugh at themselves or admit mistakes.

A bully in the workplace may be spotted by the effect they have on others. There are certain things to look out for, and if they present themselves it is worth investigating to see if bullying is a problem. These things include complaints about a person’s behaviour, high rates of absenteeism and turnover, comments about stress, low morale, conflict, changes in levels of performance (in either a team or an individual), and comments about a “personality clash”.

Employers’ duties

The Human Rights Act 1993 covers harassment that is of a sexual or racial nature, but in many cases there is nothing sexual or racial about bullying. Bullying is a deliberate attempt by the perpetrator to control and undermine the target, and the target is generally chosen regardless of their gender or race. So in many cases, the Human Rights Act would be irrelevant to bullying situations.

Bullying behaviour has been held in previous cases to be a breach of the implied terms of trust and confidence in the employment agreement. An employee who resigns because they are being bullied at work may be able to successfully claim constructive dismissal.

In addition to being in breach of the implied terms of trust and confidence, bullying may put the employee’s health and safety at risk by causing them harm, eg depressive illness. Employers who do not adequately identify and control hazards run the risk of being prosecuted for breaching the Health and Safety in Employment Act 1992. The Act states that the term “hazard” includes a situation where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person.

If an employee claims that it is a health and safety issue and that their employer has failed to take reasonable steps to protect them from harm caused by bullying, this should be substantiated with a medical certificate, for example confirming that the employee has suffered anxiety disorder (or something similar) caused by bullying at work.

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