WorkSafe NZ and the Ministry of Business, Innovation and Employment have released Best Practice Guidelines on Preventing and Responding to Workplace Bullying (Guidelines).
These are the first comprehensive NZ guidelines for preventing and responding to workplace bullying. The Guidelines define workplace bullying and provide practical information for both employees and employers.
Definition of workplace bullying
The Guidelines adopt the Safe Work Australia definition of workplace bulling which is:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. Repeated behaviour is persistent and includes a range of actions. Unreasonable behaviour covers actions which a reasonable person would not do in similar circumstances. It includes victimising, humiliating, intimidating or threatening a person. A single incident is not considered bullying but it can escalate and should not be ignored.
The Guidelines list common bullying behaviours but stress that to be classified as bullying, all three aspects (in bold above) need to be present.
The Guidelines also introduce the concept of "institutional bullying". This is where an organisation's norms, culture or practices allow behaviour which causes offence or undue stress, or where workplace structures, practices, policies or requirements place unreasonable burdens on employees without concern for their well-being (impossible targets, unmanageable case loads, or unrealistic deadlines are listed as examples).
The definition of bullying in the Guidelines appears to be a departure from the definition developed in case law and reflected in many employers' policies, which also requires a focus on the motivation for the behaviour. To amount to bullying under the commonly accepted definition, the alleged conduct needs to be carried out with the desire to gain power or exert dominance, and with the intention to cause fear and distress. It will remain to be seen how the Courts will interpret the definition set out in the Guidelines in light of the case law in this area.
The Guidelines provide advice for employees who think they might be bullied and contain several detailed flow charts on how to assess whether they are being bullied, and if so, the steps available to resolve the issue.
The Guidelines also list an 0800 number employees can call to report a bullying allegation. The complaint will be given to the health and safety response team but is not clear to what extent WorkSafe NZ will investigate the complaint, if at all.
The Guidelines also contain useful information and resources for employers, including sample policies and template documents. The emphasis is equally on:
- preventing workplace bullying (good management practices, setting out clear standards of expected behaviour, bullying prevention policies, education, assessing workplace culture); and
- responding to complaints of bullying (informal, mediation, formal investigations).
What do the Guidelines mean for employers?
The Guidelines are a timely reminder to ensure that your organisation's workplace culture is clear (through a Code of Conduct, Values and Vision), and that you have transparent, well communicated bullying prevention policies and processes in place.
The Guidelines contain generic guidance and sample policies which are a useful starting point, but it is important to update and tailor your policies and processes for your organisation as workplace cultures differ. The Guidelines also recommend employers regularly review bullying policies, processes and systems to ensure they are working well, and educate staff about bullying behaviours and their consequences.
The release of the Guidelines (and the associated media coverage) is likely to bring bullying to the forefront of many workers' minds and could result in an increase of complaints. The introduction of the WorkSafe NZ 0800 number for bullying complaints may also mean that the first an employer hears of a complaint, is from WorkSafe NZ.
We have a wealth of experience in drafting and reviewing anti-bullying policies, providing training on how to prevent and respond to bullying complaints, assisting with internal investigations and undertaking independent investigations. Please contact us if you require assistance in relation to any aspect of a bullying policy, training, complaint or investigation.