WorkSafe NZ and the Ministry of Business, Innovation and Employment (MBIE) have released a new set of “best practice guidelines” relating to workplace bullying (Guidelines). The Guidelines are intended as a comprehensive practical tool for both employers and employees in preventing and responding to workplace bullying.
Important aspects of the Guidelines include the following:
What bullying is
The Guidelines define workplace bullying as “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.” Repeated behaviour means that it is persistent, but can involve a range of actions over time. Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. Examples given include victimising, humiliating, intimidating or threatening a person.
In deciding whether particular behaviour amounts to bullying, the Guidelines recommend that employees ask themselves whether what they are experiencing is “unreasonable, repeated and health endangering” – in order to be classified as bullying, all three aspects will usually be necessary. This means that a single incident of unreasonable behaviour is unlikely to amount to bullying.
Importantly, the motivation behind the behaviour is not 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.
What bullying is not
The Guidelines emphasis that 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 manager 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.”
It is not uncommon for employees who are being performance managed to raise complaints of bullying in relation to the increased scrutiny and reviews that they are receiving. This summary of what bullying “isn’t” may be useful in assisting employees to understand the difference between firm management of performance and bullying.
Advice to employees
The Guidelines also provide a series of flowcharts and other tools which employees can use to answer the questions “am I being bullied?” and “what can I do about being bullied?”. The Guidelines also suggest examples of several “low key solutions” that employees could use if they feel that they have experienced or witnessed workplace bullying.
Advice to employers
The Guidelines recommend that employers take a number of steps in order to prevent bullying in their workplaces.
These steps include:
- recognising and promoting diversity;
- fostering a shared sense of purpose;
- developing management standards in relation to appropriate behaviours and communication;
- making the workplace’s culture clear through a code of conduct, set of values, and/or “vision statement”; educating staff; and
- providing contact and support people (which may include internal support as well as external support, such as EAP services).
Where a bullying complaint is received, the Guidelines include a recommended process for responding to that complaint. This may include informal inquiries or a formal investigation. The Guidelines emphasise the importance of principles of natural justice in relation to the way any bullying investigation is conducted.
Addressing bullying in your own workplace
The Guidelines serve as a useful reminder for employers about the importance of having policies in place for preventing and managing bullying and responding to formal bullying complaints. The examples and templates in the Guidelines may provide a useful starting point, but each employer should tailor its policies so that they are consistent with the particular vision, values and standards of its workplace. For example, it will be important to ensure that any bullying policy is consistent with the employer’s other policies relating to disciplinary issues.
For those employers who already have a bullying policy in place, it might be useful to review that policy and ensure that it is “current” with the present state of your workforce and culture. You might also want to consider running “refresher” training with managers or staff relating to bullying issues and your policy, as the Guidelines recommend.
It remains to be seen whether the courts will apply the Guidelines as “best practice” in relation to bullying issues in future cases. However, workplace bullying is a health and safety issue which all employees should be concerned to eliminate if at all possible. It would therefore be prudent for employers to consider whether you are doing enough to prevent bullying behaviour and ensure that you have sufficient processes in place to manage bullying issues.