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Workplace Bullying: An Update

August 2009

NB: The comments included in this publication should not be read as representative of the view of the Court, Authority, or the Department of Labour.  Rather, any view expressed is in the nature of an opinion only.

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Workplace Bullying: An Update

Introduction

Bullying can have a serious impact on a workplace. For an employee who is targeted by workplace bullying, the workplace can become a place to fear. For an employer, the hidden costs of such behaviour can quickly mount up. Increased job dissatisfaction, workplace stress and staff turnover all lead to a less productive workplace, and an employer is also at risk of the costs associated with legal claims by employees who have been bullied.

This discussion will tackle the fundamental issue of what constitutes workplace bullying. It will then outline the legal rights and obligations of employees and employers when workplace bullying occurs.

Recognising Workplace Bullying

Introduction

It can be difficult to distinguish workplace bullying from a mere personality clash. This distinction and the broader question of exactly what constitutes bullying are important in determining when legal obligations arise.

Workplace bullying has not been specifically defined in legislation or by the Employment Court, as it is a difficult concept.1 However, a number of authors have defined the concept. One definition stated that workplace bullying 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.2

This definition focuses on the bullied employee’s reaction to the behaviour. There are also further working definitions of bullying in Employment Relations Authority determinations. The Authority in Evans v Gen-i Limited3 referred to academic definitions of bullying in concluding:

Bullying may be seen as something that someone repeatedly does or says to gain power and dominance over another, including any action or implied action, such as threats, intended to cause fear and distress.4

This definition was approved of in Isaac v Chief Executive of the Ministry of Social Development5 and cited by the Authority in Kneebone v Schizophrenia Fellowship Waikato Incorporated.6 In Kneebone the Authority found:

The common theme arising from the literature I have read suggests a bully has a desire to exert power and control over others, usually demonstrates a complete lack of understanding for other people’s feelings and uses intimidating behaviour.7

The Authority in Kneebone concluded that to come within a broad definition of bullying, the bully’s behaviour must include:

  1. Repeated actions;
  2. Carried out with the desire to gain power or exert dominance;
  3. Carried out with the intention to cause fear and distress. 8

These working definitions of bullying are useful in understanding the issue of what constitutes bullying. They consistently describe bullying as involving repeated actions which are intimidating and distressing. The Authority’s descriptions above also focus on the bully’s reasoning for their behaviour.

Case examples provide specific, real life examples of bullying behaviour. It is useful to refer to specific examples of situations that have been found to constitute or not constitute bullying in the legal sense. The following section will focus on case examples of the types of behaviour that did or did not amount to bullying. The cases deal with instances of “horizontal” bullying (bullying by workplace peers), as well as instances of “vertical” bullying (bullying of subordinate employees by those higher in the workplace hierarchy, or vice versa).

Case examples of workplace bullying

In Roberts v Japan Auto (NZ) Limited,9 the employee’s manager made cruel, insulting and public comments about the employee’s psychological problems. He also implied in numerous ways that the employee was not wanted in the workplace, such as by removing his name from the staff board. The manager also told the employee that he would not approve his sales. As the employee was a commission only salesperson, refusing approval would have denied him any income at all. Judge Colgan considered that the manager’s behaviour towards the employee was “one of the starkest cases of a course of conduct with the deliberate and dominant purpose of coercing a resignation, that I have ever encountered.”10 The manager’s bullying and the employer’s poor management of the situation led to an unjustified constructive dismissal grievance. The Court found that bearing in mind the employee’s known fragile state of mind and the intensity and acuity of the remarks, it did not matter that the employee was only subjected to the bullying for three weeks. It was not necessary in the circumstances for the behaviour to have occurred over a substantial period in order to constitute bullying.

In Cartwright v Commissioner of Police,11 the Employment Court found that the employee’s manager bullied the employee. The Court held that the manager pre-judged and formed a negative view of the employee, so adopted an aggressive and domineering style of management. He relieved the employee of many of his duties and gave the employee an extremely low performance review. The Court found that the manager’s behaviour and attitude were unprofessional, uncompromising, confrontational and resentful. The Court found that the conduct could be described as bullying and contributed to the employee’s stress. The Court held the conduct amounted to breaches of the employer’s duty to act fairly and reasonably and to be a good employer.

Vertical bullying was also found by the Employment Court case of McGowan v Nutype Accessories Limited,12 but with the employees in the opposite roles. McGowan concerned the repeated verbal abuse of the general manager by a member of staff. For a period of three months, every time the staff member passed the manager’s office he would call out insults, swear words and threats such as “idiot,” “f…ing bastard,” “you’re f…ing disgusting, dead man,” and “I’m gonna f…ing drop you, bastard.” The Court considered that this was a case of overt, extreme, persistent and offensive bullying. It “rendered [the manager] powerless through constant humiliation.”13 The staff member had also previously verbally and physically assaulted the manager. The Court found that there was ample evidence of the effects of the staff member’s unrestrained intimidation and threats which amounted to bullying.14 The Court held the repeated verbal abuse amounted to bullying.

In O’Brien v Renton Chainsaws & Mowers Ltd,15the employee complained of various bullying behaviours on the part of the employee in charge of the shop in which he worked. The employee in charge put down the employee, stole his sales, did not relieve him for breaks and viewed pornographic material on the office computer. On a number of occasions the employee in charge physically pushed the employee, particularly when the employee was serving customers at the till. The Authority commented that while one incident of pushing may have been accidental, here there were several incidents. The Authority categorised the employee’s complaints of pushing as violence towards the employee. The employer’s failure to deal with these complaints resulted in a failure to provide a safe workplace and was a breach of the duty of fair treatment.

In Kneebone, the employee described several specific incidents to the Authority which she considered to constitute horizontal bullying by her colleague. The incidents involved the colleague taking over the employee’s presentation, commenting on the employee’s appearance and family members, criticising the employee’s work and teasing the employee. The colleague denied any bullying behaviour and claimed the cause of the relationship breakdown was in fact the employee. The employer’s investigation concluded that the incidents did not constitute bullying, but were evidence of a personality clash. Referring to the previous definitions of bullying, the Authority found the colleague’s behaviour was not intimidating, malicious or insulting, and that she did not intend to cause fear or distress. The employee’s perception of the colleague’s behaviour and its seriousness was exaggerated and overstated. The employee put all of the responsibility for the breakdown in the relationship on the colleague, but lacked insight into her own actions and how they affected others. This was not a case of bullying in the workplace, but rather an example of a failed and dysfunctional workplace relationship.

It is clear from decisions of the Authority that strict management or some kind of personality clash will usually not be enough to support a claim of bullying.  In Briggs v New Zealand Gem Trading Company16 the employee complained that the combination of various behaviours of her new manager amounted to bullying. She pointed to his dominant and blunt management style, his condescending and over-bearing manner, his negative tone of voice and frequent derogatory comments about her, and the way in which he dealt with her habit of talking to herself and difficulties with her work. The employee referred in particular to an incident in which the manager had told her that if she was not prepared to discuss things she “might as well pack her bags and go.” The Authority accepted that the manager’s style was very businesslike and efficient, his manner could be very brusque, and that there were some specific incidents that had caused the employee some unhappiness or resentment. However, the Authority found that the employee was a sensitive person who had taken offence at behaviours which fell within the normal range of what could be expected in the workplace.

Similarly, in Voisey v Age Concern Counties/Manukau Incorporated17 the employee objected to her new manager’s manner and the way in which he dealt with a number of matters relating to her work practices. She complained that the manager, among other things, used offensive words in her presence; made critical comments about his predecessor, who was a personal friend of the employee; excluded the employee from meetings; required the employee to keep her cell-phone on her at all times; complained about her work without provision of written verification; demanded that she provide details of ill-health causing absence from work; commissioned a review of operations that contained unwarranted criticisms of her performance; and communicated with her in a tone that indicated a disdainful attitude towards her. The Authority made similar comments to those in Briggs. The Authority accepted that the manager’s manner could be very brusque and insensitive and even, at times, rude. However, the Authority found that the employee was “an extraordinarily sensitive person who took offence at behaviours which fell within the normal range of what can be expected in the workplace, even a workplace which might be considered less robust than some others.”18

In Nagai v Carlton Hotel (Auckland) Limited19 the Authority again found that the behaviour complained of amounted to firm management rather than bullying. The employee alleged that the head chef in the restaurant where he worked singled him out for criticism in front of other staff, blamed him for deficiencies that were not his responsibility, and yelled at him. The Authority considered that the behaviour of the head chef amounted to nothing more than firm directions or rebukes in respect of minor misdemeanours on the employee’s part. The case also indicated that the Authority may sometimes take into account the nature of the workplace environment when determining whether the conduct complained of amounts to bullying. In the Authority’s view, although some of the exchanges complained of caused the employee unhappiness, they came “well within the scope of expected and acceptable conduct between a supervising chef and an employee in a busy kitchen.”20

In Sharma v Vehicle Testing NZ Ltd21 the Authority accepted that the employee’s area manager spoke to him about his customer relations in a “matter of fact” way and asked the employee whether he was in the right job. It also accepted that the area manager asked the employee on more than one occasion “are you going to go or stay?” The Authority was not persuaded that those incidents described by the applicant amounted to harassment, threats, or bullying. 

Behaviour that would not normally be expected in a workplace, even if distressing to an employee, will not always be of a serious enough nature to amount to workplace bullying. In Sherwin v Fletcher Challenge Forests Limited22 the employee claimed he was humiliated on a regular basis by being made to wear a joke beanie hat with a propeller. The hat was given to anyone who made minute changes to log demands during a particular workplace process. The Authority found that “[w]hile that sort of behaviour is infantile and I accept that [the employee] found it distressing I do not think it falls within the ambit of what can be described as workplace bullying.”23

Legal Claims

A bullied employee may have legal claims against their employer, under both legislation and the common law. The causes of action often rely on the same facts so can overlap in practice. The case summaries attached cite the applicable legislation and type of claim relevant to each individual case. There is also the possibility of a Department of Labour prosecution.

When an employee is bullied, they may have a personal grievance claim against the employer under the Employment Relations Act 2000 (“ERA”). The employee may have been unjustifiably disadvantaged due to the employer’s failures related to the bullying, such as a failure to investigate the complaints and provide a safe workplace. If the employee was dismissed for reasons relating to their being bullied, they may claim that the employer unjustifiably dismissed them. In Clear v Waikato District Health Board,24 the Employment Court found the employee was both unjustifiably disadvantaged and unjustifiably dismissed for reasons related to her being bullied. The employee was dismissed due to a long period of illness, but the illness was a result of severe stress attributable to the employer’s failure to adequately deal with her complaints of bullying. If the employee resigned, they may claim their resignation was actually a constructive dismissal due to various failures by the employer. In Roberts, the Employment Court found that the bullying manager’s behaviour amounted to a clear course of conduct with the dominant and deliberate purpose of inducing the employee’s resignation. The employee’s resignation was actually a constructive dismissal. Similarly, in McGowan, the Employment Court treated the employee’s resignation as a constructive dismissal. The employee had resigned because he had been bullied and the employer had failed to support him in the face of such repeated abuse.

Every employment agreement contains certain fundamental terms implied by the common law. Breaching a term of an employment contract has serious implications. It may unjustifiably disadvantage the employee. It may cause the employee to resign, meaning that the resignation is a constructive dismissal. Alternatively, an employee may bring a breach of contract claim on its own accord under the common law or s161 ERA.

Firstly, an employer is under an implied duty not to conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust, confidence and fair dealing which exists between employer and employee. The Employment Court in Roberts found that the bullying manager’s conduct

…amounted to a fundamental breach of the term of trust, confidence and fair dealing inherent in the parties’ employment contract. The ongoing and multi-faceted nature of the breach indicated an intention to continue not to be bound by the term and therefore the contract. That, too, was a constructive dismissal of [the employee].25

Bullying by the employee’s manager amounted to a breach of the implied term of trust and confidence. The Court considered the employee’s resignation as a result of the breach of the implied term to be a constructive dismissal.

If an employer fails to adequately deal with workplace bullying, it also leaves itself open to an allegation that it has breached the implied term of trust and confidence. In Hawkins v The Commissioner of Police,26 the Employment Court found that the cause of the employee’s resignation was the ongoing betrayal of his trust and confidence in the police administration through its failure to address the systemic dysfunction at his workplace which had made him seriously unwell. The Court found:

The implied duty relied on in this case is that an employer must not conduct itself in a manner calculated to or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The issue is one of causation.27

The Court found the employer’s failures had destroyed the trust and confidence essential in an employment relationship. The substantial risk of resignation was foreseeable to the employer and the employee was constructively dismissed. Bullying managers and employers’ failings in dealing with bullying complaints can breach the implied term of trust and confidence.

Another relevant implied duty in the context of workplace bullying is the duty of an employer to provide a safe and secure workplace. The employer is required to take reasonable steps to protect employees from harm. Harm is defined in the Health and Safety in Employment Act 1992 (“HSE”) as including illness, injury, and physical or mental harm caused by workplace stress.28 Bullying can potentially cause physical and psychological harm. An employee could be physically bullied and assaulted,29 suffer medical conditions resulting from stress,30 become extremely anxious, and so on. Under s6 HSE, an employer must take all practicable steps to ensure the safety of employees while at work, in particular providing safe working environment and ensuring that employees are not exposed to hazards at work. The 2002 amendments to the HSE clarified the definition of hazard to include a situation where a person’s behaviour may be the cause or source of harm including a situation resulting from physical or mental fatigue, drugs, alcohol, traumatic shock or other temporary condition that affects a person’s behaviour.

In McGowan, the Employment Court found that the employer’s failures to properly address bullying complaints amounted to a breach of the duty to take all reasonable and practical steps to provide the bullied employees with safe working conditions. In O’Brien, the employer did not properly investigate the employee’s bullying complaints, which included physical pushing. Although it did not invoke the HSE, the Authority found the employer had failed to provide a safe and secure workplace, so the employee was unjustifiably constructively dismissed. In Clear, the Employment Court found that the employer breached its duty to provide the employee with safe working conditions, when the bullying in question involved only mental harm, except the physical harm resulting from stress. These cases all involved the employer breaching the implied term of providing and maintaining a safe workplace.

Where an employer breaches its obligations under the HSE, they also risk prosecution by the Department of Labour. Physical bullying in the workplace may breach the HSE. Alternatively, stress caused by workplace bullying could result in a breach of the HSE. Workplace bullying situations can lead to high stress, such as in Hawkins and Clear, which could in turn lead to a risk of prosecution under the HSE. The District Court in Department of Labour v Nalder & Biddle (Nelson) Ltd31imposed a fine of $8,000 where the injury suffered was work-related stress. The Court noted that the employer’s obligation was the same whether the potential injury was to health or to life and limb. See the Workplace Stress Theme for more information on health and safety prosecutions.

In practice, the numerous causes of action are often closely related and at times overlap. For example, a breach of an implied term can lead to a claim of constructive dismissal or unjustified disadvantage, as discussed above. Similarly, the Authority in Kneebone found that the employee’s claims relating to constructive dismissal, breach of good faith and breach of HSE all relied on the same facts. They were sufficiently addressed by the findings related to constructive dismissal, so the other claims were also dismissed. A personal grievance is the most likely avenue of complaint for employees.

Dealing with workplace bullying: the obligations of employers and employees

The Employee

In order for an employer to assist an employee when they are being bullied, they must first know that there is a problem. As the Employment Court stated in McGowan:

The obligation on an employee is to bring the concerns to the attention of the employer... After that it is the duty of a responsible employer properly to investigate the concerns and to take necessary steps to protect its employee.32

The employee must therefore ensure that the employer is aware that they are being bullied.

A written complaint to the employer can clearly constitute bringing bullying to the employer’s attention. The employee in Clear had made numerous verbal and four written complaints about her supervisor. The Court found that her complaints clearly and unequivocally brought the issue of bullying to the employer’s attention. In Cartwright, the employee had also laid formal written complaints about his superior.

The employer’s knowledge of bullying can be assumed in certain circumstances. In McGowan, the Employment Court held:

Even if [the employer] didn’t have full knowledge it should have. [The employee’s] repeated verbal complaints as well as the size of the business and the layout of the premises, including close working conditions, meant that any employer mindful of its responsibilities should have had such knowledge of the persistent bullying which was taking place.33

Not only had the employee complained, the employer should have been aware due to the obvious circumstances of the bullying in that particular workplace. The Court considered that, “[b]ullying can be insidious but in this case it occurred under the noses of management.”34 The Court also rejected the employer’s argument that because the employer’s board members did not speak English well, they did not understand what the bullying employee was saying to the bullied employee. The employer was found to have been aware of the bullying. The Employment Court stated that the duty to take all reasonable and practical steps to provide the employee with safe working conditions arose from the time the employer first knew of the bullying employee’s violence towards the employee. The notion that the duty extends to situations where the employer ought reasonably to have known about the circumstances in question is also reflected in s2A HSE.

A practical issue can arise over who, as an agent of the employer, must have the requisite knowledge of bullying. In Rance v Christchurch City Council,35 a case dealing with workplace stress, the Authority found that although the immediate manager did not explicitly convey the problem to senior management, it was clear that at least she was aware of the employee’s distress. The immediate manager’s knowledge was sufficient to constitute knowledge on the part of the employer.

In some cases, employees must also allow the employer a reasonable opportunity to address the issue of bullying once the employer is aware of its existence. What amounts to an adequate opportunity to address the employee’s concerns will depend on the circumstances. In O’Brien,the employer complained that the employee had resigned before it had the opportunity to complete its latest investigation into his bullying complaints. The Authority found the employee reasonably believed that no appropriate action would be taken in terms of his latest complaint because of certain comments made to him and the inadequate way his earlier complaints had been dealt with. The employee was constructively dismissed despite not having waited for the investigation to be concluded. In Wilford v Aden Electrical Ltd,36 the employee also resigned before the employer’s latest investigation into his bullying complaint was complete. In this case, however, the employer had requested time to investigate the employee’s complaint. Before the investigation was complete, the employee resigned during a period of sick leave in order to accept an offer of alternative employment. As in O’Brien, the employee’s previous complaints had not been properly dealt with. The Authority in Wilford found that the employee was unjustifiably disadvantaged by the earlier inadequate investigations. However, the Authority found that the employee had a choice at the time he chose to resign: he could have chosen to wait until the employer had completed his investigation. Because the employee was on sick leave, he was not at risk of further bullying. His resignation was not caused by a breach of duty on the part of his employer.

The Employer

Once an employer is aware of the existence of bullying behaviour, it must take affirmative steps to deal with the bullying. The Employment Court in Clear found that:

A fair and reasonable employer faced with [the employee’s] repeated complaints should have undertaken a comprehensive investigation at the earliest opportunity, reached a firm conclusion on the complaints, kept her fully informed of the process, advised her of the decision and then taken steps to address the dysfunction.37

The employer is obligated to investigate the complaints, reach a conclusion, and take remedial action where required. The employer must also keep the employee informed throughout this process.

In Kneebone, the Authority found the employer had met its obligations. It had investigated the employee’s concerns and attempted to resolve them. The Authority found the employer did everything it reasonably could to improve the relationship between the employee and her alleged bully, given the employee’s refusal to constructively participate in resolution processes. The employee frustrated the employer’s attempts to attain harmony in the workplace. The employer had reached a reasonable conclusion that the source of the problem was a personality clash, not workplace bullying. When the employer advised the employee of its conclusions, she refused to accept it. The fact that the employee refused to accept the employer’s conclusion did not mean that the employer had breached its obligations. It had still properly investigated the complaints, communicated with the employee, and attempted to resolve the personality conflict. The employer met its obligations to the employee and her constructive dismissal and related claims were dismissed.

In Clear, the Employment Court reframed the employee’s grievance from the claim that she was bullied by a co-worker to the issue of the employer’s failure to properly investigate her claims of bullying. The Court found that the hospital manager carried out an adequate investigation of the employee’s first complaint. When he resigned, however, other managers inadequately investigated the remaining complaints. The Court found that the employer was wrong to have investigated them individually, rather than as a whole issue, so the historical context was not properly considered. The employee’s deteriorating state of mind was caused by the stress resulting from the employer’s failure to properly address her complaints. The employer failed to interview staff and former staff as requested by the employee. The employer breached its duty to provide the employee with safe working conditions. The employer also failed to adequately communicate with the employee about the steps it was taking to address her complaints and to finalise its investigations and report the outcomes to her.

The Authority in Wilford also found that the employee’s bullying complaints were not properly investigated, constituting an unjustified disadvantage to the employee. The employer considered that the employee was an unusual character, so discounted his concerns as being over dramatised, or considered that he was being oversensitive to the traditionally accepted rough construction industry environment. The employer, while not completely dismissing the employee’s complaints, did not take them seriously. As the employee was clearly distressed, a fair and reasonable employer would have undertaken a full and thorough investigation. Had the employer done so, it may have legitimately concluded the concerns were unfounded. Without undertaking a proper investigation, however, the employer was not entitled to dismiss the employee’s complaints.

In O’Brien, the Authority found the action taken by the employer in response to at least four complaints by the employee was inadequate and ineffective. The employer had spoken to the bullying employee about the problem. However, when the employee continued to complain about bullying, the employer should have seen that matters were not improving and have dealt with the complaints more effectively. The investigation of the bullying employee was tainted by the investigator’s view of the employee as an exaggerator and a whinger, and the investigator’s own permissive attitude towards pushing or elbowing other employees, which may have minimised the seriousness of the behaviours. The Authority categorised the employee’s complaints of pushing as violence. The complaints needed to be properly investigated so the employee could be protected from their recurrence.

The Court in McGowan noted that the company’s board had a particular responsibility to a general manager who had no one else to turn to. When the employer’s board of directors failed to adequately deal with the employee’s bullying complaints, the general manager had no other superior officer to turn to.

In Harbord v Waste Management Limited38 the employer also failed to meet its obligations to take all practical steps to ensure the employee’s safety.  Despite the fact that the employer clearly accepted the employee’s honestly held fears and its obligation to talk to the bullying employee, it did not do so until one month after the employee’s initial complaint. The Authority considered that the employer should have acted immediately in response to the employee’s serious allegation and that, in failing to do so, it unnecessarily subjected the employee to an unhealthy and unsafe working environment.

A failure to properly investigate the employee’s bullying complaints can lead to further workplace issues. In Hawkins and Cartwright, the employees suffered workplace stress as a result of the employer’s lack of support in the face of their bullying. Employers must ensure they fulfil their obligations to employees who complain of being bullied in the workplace.

Dealing with the bully

An important part of the employer’s response to the complaints must be to also consider the best way to deal with the alleged bully. The employer may conclude as a result of their investigation that some form of disciplinary action or dismissal is the appropriate sanction for the bully’s behaviour. The employer must be able to substantively and procedurally justify that action taken against the bully. If the employer’s actions cannot be justified, the bully may succeed in a claim of unjustified disadvantage or unjustified dismissal under the personal grievance provisions of the ERA.

A number of claims have been brought by employees subjected to disciplinary sanctions for bullying behaviour. In Williams v The Warehouse Limited,39 the employee was dismissed for serious misconduct for bullying her staff. She claimed that she was unjustifiably dismissed. The Authority found the employer had reasonably and genuinely concluded that the employee had bullied staff. The employer received two separate and unsolicited complaints about the employee. The employer’s investigations bore out the tenor of the complaints. The employer had to choose between the employee’s denial against consistent allegations made by a number of current and former staff. The Authority found that the employer was in a difficult situation and had to protect its other employees. The employer’s dismissal of the bully for serious misconduct was justified.

The employee in Job v Attorney-General in respect of the Director-General of Conservation40 brought a personal grievance for unjustified dismissal after having been dismissed for serious misconduct. The employer had concluded as a result of investigation that the employee was responsible for bullying and harassment of staff at his workplace and that his behaviour had caused or contributed to a climate of fear and intimidation. The Authority found that the dismissal was justified as the nature of the employee’s misconduct struck at the heart of an employment relationship based on mutual trust and confidence.

The employer in Goldstone v Cogent Communications Limited41 described the employee’s management style as direct, blunt, abrasive and aggressive. The employer dismissed the employee after concluding that it could no longer trust him as his behaviour amounted to bullying, victimisation and harassment of a number of employees under his supervision. The Authority found that the bullying employee had been unjustifiably dismissed as there were serious procedural flaws in the employer’s disciplinary process. However, the Authority reduced the remedies payable to the employee by 50 percent due to his contributory conduct. The Authority found the manager had created a climate of fear and mistrust.

An employer must act carefully in dealing with bullying complaints. While the employer is obligated to act to protect staff from bullying, is also obligated to follow proper procedures with the alleged bully.

Conclusion

As there is no one simple definition in legislation or case law, it can be difficult to identify workplace bullying.  More than a mere personality clash is required, but physical harm is not a necessary requirement. Often bullying behaviour will be revealed by a bully’s repeated actions combined with their intention and desire to cause fear or distress and gain power or exert dominance. In the case examples discussed, the EC and Authority describe specific situations which have been found to constitute bullying.

When workplace bullying does occur, common law and statutory obligations both apply. Both the bullied employee and the employer must take certain active steps to improve the situation. The employee must ensure that the employer is aware of their problem so that the employer can then fulfil its obligations to properly investigate the matter and take the necessary steps to ensure the safety of the employee. For the employer, dealing with a problem of workplace bullying involves walking a fine line: do too little to address the targeted employee’s concerns and risk facing a claim by that employee; but inappropriately discipline the alleged bully and risk facing a claim from them instead.


Endnotes

1 Isaac v Chief Executive of the Ministry of Social Development unreported, V Campbell, 5 Jun 2008, AA 200/08

2 Hayden Olsen, Workplace Bullying and Harassment (CCH New Zealand Limited, Auckland, 2005) 8

3 Unreported, D King, 29 Aug 2005, AA 333/05

4 Evans v Gen-i Limited unreported, D King, 29 Aug 2005, AA 333/05, p2-3

5 unreported, V Campbell, 5 Jun 2008, AA 200/08

6 Unreported, V Campbell, 13 Feb 2007, AA 31/07

7 Kneebone v Schizophrenia Fellowship Waikato Incorporated unreported, V Campbell, 13 Feb 2007, AA 31/07, para 6-7

8 Kneebone v Schizophrenia Fellowship Waikato Incorporated unreported, V Campbell, 13 Feb 2007, AA 31/07, para 207

9 [2003] 1 ERNZ 439

10 Roberts v Japan Auto (NZ) Limited [2003] 1 ERNZ 439, 446

11 Unreported, Travis J, 22 Dec 1999, AC 110/99

12 [2003] 1 ERNZ 120

13 McGowan v Nutype Accessories Limited [2003] 1 ERNZ 120, 133

14Ibid, 134

15 Unreported, H Doyle, 27 Feb 2003, CA 21/03

16 unreported, V Campbell, 4 Jun 2004, AA 194/04

17 unreported, YS Oldfield, 16 Sep 2003, AA 282/03

18 Voisey v Age Concern Counties/Manukau Incorporated unreported, YS Oldfield, 16 Sep 2003, AA 282/03, p11

19 unreported, J Scott, 19 Oct 2004, AA 339/04

20 Nagai v Carlton Hotel (Auckland) Limited unreported, J Scott, 19 Oct 2004, AA 339/04, p4

21 unreported, L Robinson, 4 Jun 2004, AA 195/04

22 unreported, D King, 14 Sep 2004, AA 293/04

23 Sherwin v Fletcher Challenge Forests Limited unreported, D King, 14 Sep 2004, AA 293/04, p6

24 Unreported, Shaw J, 15 Dec 2008, AC 49/08

25 Roberts v Japan Auto (NZ) Limited [2003] 1 ERNZ 439, 448

26 [2007] ERNZ 762

27 Hawkins v The Commissioner of Police [2007] ERNZ 762, 778

28 HSE 1992 s2

29 For example the employee being repeatedly pushed in O'Brien v Renton Chainsaws & Mowers Ltd unreported, H Doyle, 27 Feb 2003, CA 21/03

30 For example the employee’s heart condition in Whelan v The Attorney-General in respect of the Chief Executive Officer of the Children & Young Persons Service [2004] 2 ERNZ 554

31 Unreported, District Court, Nelson, McKegg J, 13 Apr 2005, CRN 04042500

32 McGowan v Nutype Accessories Limited [2003] 1 ERNZ 120, 133

33 Ibid, 133

34 Ibid, 133

35 Unreported, J Crichton, 14 Aug 2006, CA 123/06

36 Unreported, J Wilson, 19 Jan 2007, AA 12/07

37 Clear v Waikato District Health Board unreported Shaw J, 15 Dec 2008, AC 49/08, para 125

38 Unreported, D Asher, 23 Feb 2005, WA 30/05

39 Unreported, D King, 23 Dec 2005, AA 498/05

40 Unreported, A Dumbleton, 20 Jan 2003, AA 18/03

41 Unreported, A Dumbleton, 13 May 2004, AA 170/04