Thursday, April 15, 2010

Workplace Bullying

The recent release of the report by Professor Bentley and his colleagues on workplace bullying puts the spotlight on a problem that has, over recent years, increasingly been recognised as a major workplace issue. One obvious question that arises is what legal redress is avaiable to victims of bullying? The Minister of Labour, Kate Wilkinson, is reported as stating that the employment institutions can deal with claims of bullying through personal grievance claims. I agree with this comment although with some caution and reservations.

In some ways bullying stands in much the same position as sexual harassment did two or three decades ago. Society and the courts were initially slow to recognise both the nature and extent of that problem and to react positively in dealing with it. That position is now vastly improved. That is not to say that there are no problems in bringing a personal grievance based on sexual harassment - there are but they tend to be problems that are endemic to legal processes such as satisfying the burden of proof and the adversarial nature of the grievance process rather than a failure to recognise the underlying problem.

That both the Employment Court and the Authority take bullying seriously is clear if one examines cases over recent years. In a blog such as this it is not possible to provide a detailed legal analysis but a recent example is provided by Judge Shaw's decision in Clear v Waikato DHB [2008] ERNZ 646. Judge Shaw stressed the obligation of employers to provide a safe system of work and an obligation to properly investigate allegations of bullying. She also made the important point that such an investigation must consider the course of conduct as a whole (the 'persistence' aspect of bullying) and not focus on individual events in isolation. Other cases also indicate that both the Court and Authority have a good grasp of the problems posed by bullying. However in the absence of overt and obvious conduct such cases are not always easy to decide. The problem of "management style" for example poses real problems. One persons need to manage poor performance can be viewed by aother as bullying. However in general the Court and Authority seem to have taken a sensible and pragmatic approach in such cases.

As yet however the Authority and Court do not seem to have had to deal with the most intractable form of bullying, the workplace psychopath. Such bullies are typically confident and assured and likely to be supported internally by their own managers. Most practicing labour lawyers will have come across such cases and will know the difficulties they pose. and the severe nature of the trauma faced by the employee (or former employee) who often has difficulty even appreciating why they have been victimised. Formal proceedings merely increase the trauma and the result is often an indequate settlement with the bully suffering little or no consequences.

In the most insidious cases the character of bullies may be not fully appreciated by those hearing cases. Perceptions that victims are merely over-reacting to strong (and by implication necessary) management; that they are unable to adjust to new requirements or that bullying is just a “brand-new fashionable" escape clause for poor performance can have a sufficient grain of truth to cause confusion and potential bias. False perceptions of who might be telling truth based on the demeanour of witnesses are of particular concern: “he conducted himself favourably and was in charge of his emotions...” or “she maintained her dignity in responding [to allegations]. That is not the mark of a bully” show little appreciation of human conduct especially when the inevitable nervousness and confusion likely to be exhibited by the victim are seen as indications of lack of credibility.
Is the law an obstacle that adds to the other obstacles faced by victims of bullying? The answer is currently yes, but partly because of problems common to all victims in the legal system. Victims may face a high burden of proof to establish bullying and they must also be aware that the bullies are able to use their own legal rights to counter-attack, something that must also be of considerable concern to employers. The requirements of natural justice have the side-effect of exposing the victim (or more likely victims) to further abuse if the allegations are not able to be established – hence the reluctance to make formal complaints especially where, as is often the case, management and HR departments are ineffectual or hostile.

That being said, however, the personal grievance process provides the Authority and the Court with the tools to deal with cases of bullying and the effectivness of these bodies will increase as more cases are brought.

The personal grievance procedure provides as good a legal solution as is likely to be obtained but as with harassment it is second best protection - the best is that employers ensure that they are fully aware of the nature of workplace bullying and that they adopt a zero-tolerance policy towards it.

The report is avaible at;
Readers may be intersted in a paper I wrote with Neisha Cbhibba on this topic in 2008: Intractable issues in the Workplace: Dealing with Workplace Bullying, Typhoid Chris and Stess 

1 comment:

  1. I am not a Kiwi, but have been to NZ several times. The problem of workplace bullying is a global issue,and many of the scenario outlined above I have witnessed myself, in fact the article seems very close to home.Unfortunately,Unions are often ineffective in dealing with this sort of behavior,due to the shop steward being an employee himself,and not wanting to become a target of his employers,and all the potential witnesses in this sort of scenario often wishing to score points with management with the result that the bully is often 'on his own'I think the worst perpetrators of workplace bullying are supervisor/lower management level ie not quite worker, not quite management,people who feel inadequet in themselves,and who have to put others down in order to get an ego boost.