No excuse for workplace bullying

26 May 2017
Author: Andrea Twaddle
 
I admit that I don’t watch the show, but thanks to the media frenzy in the past few days I have seen the footage of TV “mentors” making destructive and deliberately harsh critiques of an aspiring performer. Whether the comments were constructed for ratings or not the different reactions to this type of behaviour have been interesting. Employers can learn a lesson or two from the sorry saga, not least the potential damage to the reputation of a brand associated with bullying.

It is pleasing to see that society has been intolerant of bullying in this instance. However, it is apparent that there is a lack of consistent understanding about what constitutes bullying. There remains no definition of bullying in New Zealand’s employment statutes. The Guidelines of New Zealand’s health and safety regulator WorkSafe, define bullying to be “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”

The Guidelines do not include the motivation behind the behaviour as part of the definition of whether or not a particular action amounts to bullying. In other words, whether the alleged bully intends to undermine or harm the alleged victim will not be relevant. This is a shift from many cases previously determined by the Employment Relations Authority and Court.

Bullying is not:
  • one-off or occasional instances of rudeness;
  • setting high performance standards because of quality or safety;
  • constructive feedback and legitimate advice;
  • a supervisor requiring reasonable instructions to be carried out; or
  • warning or disciplining employees in line with a workplace’s policies.

The Guidelines state that “reasonable management actions directed at an employee can’t be construed as bullying as long as they’re delivered in a reasonable way.” In the case of our entertainment “mentors”, it would be difficult to see how the comments were reasonable management actions, constructive or legitimate advice.

It is not uncommon for employees who are being performance managed to raise complaints of bullying that arise from the increased scrutiny and reviews that they are receiving. The summary of what bullying isn’t, is a useful reference to understand the difference between firm management of performance and bullying.

A complaint of bullying requires investigation by an employer, and where appropriate, disciplinary action. Where bullying behaviour is observed without complaint, an employer should also take proactive steps to address the issue. Employers should be mindful that they have health and safety obligations to take all practicable steps to ensure employees’ safety. That includes safety from psychological harm, which includes mental illness caused by work related stress. Stress is usually an inevitable consequence of bullying.

The outcome of any investigation must arise from the employer making a fair and reasonable inquiry. This includes the employee having a fair opportunity to know and respond to the allegations against them and information relied on by their employer, before a decision is made. The outcome of an investigation may include disciplinary action up to and including dismissal, or management and coaching of the individual, so that they gain appropriate skills in dealing with others and the conduct is not repeated.

By not taking decisive action where there is bullying, employers risk that others may take matters into their own hands. The vicious personal attacks that were directed at the “mentors” by some in response to their harsh critiques this past week, were equally demeaning. In a workplace situation, protections for the complainant and accused when investigating allegations of bullying are essential.

Bullying is less likely to occur in the workplace if employers make it clear that it is intolerable and unacceptable. To foster a culture that does not accept bullying behaviour, employers should have formal policies and procedures are in place that emphasise a commitment to prevent bullying and outline the employer’s expectations at work. Employees must be made aware of these expectations and should be given training and support to prevent bullying. Complaint mechanisms should be easily accessible.

There is no excuse and no need for bullying, whether in the playground, in the workplace, or on TV. The on air incident is an opportunity for all to take stock, and take steps to genuinely ensure that individuals are treated with respect, and that health and wellbeing of others is a priority.

Article first published by the Waikato Times, 18 March 2015

 
 
 
No excuse for workplace bullying
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz