Bullying in the Workplace

Unfortunately I have been closely involved in recent weeks with two workplace bullying allegations, one in New Zealand and the other in Australia. Without commenting further on what are still sub judice complaints, I have needed to swot up this developing area of human rights and safe work law.

Australia leads us in this field, and has workplace bullying laws, a Fair Work Commission and an Ombudsman dedicated to Fair Work and its important element, freedom from bullying. New Zealand has adopted the same protective principles, but is less advanced and in my experience less helpful to complainants.

First the similarities:

1. Definition: What is bullying

A worker is bullied at work if:

  • a person or group of people repeatedly act unreasonably towards them or a group of workers
  • the behaviour creates a risk to health and safety.

Unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.

Examples of bullying include:

  • behaving aggressively
  • teasing or practical jokes
  • pressuring someone to behave inappropriately
  • excluding someone from work-related events or
  • unreasonable work demands.

What isn’t bullying

A manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out. Reasonable management action that’s carried out in a reasonable way is not bullying. Management action that isn’t carried out in a reasonable way may be considered bullying. (http://www.fairwork.gov.au/employee-entitlements/bullying-and-harassment)

2. The Health and Safety connection

In both jurisdictions, the Health and Safety connection is explicit.

3. Investigation:

In both jurisdictions, an Investigation takes place against thresholds to determine if there is a case to answer.

4. Both countries acknowledge the importance of good Performance Management practices in enabling reasonable management action and performance review.

Now the Differences:

1. Australia offers specific law, process, orders and penalties aimed clearly at stamping out workplace bullying. This is explicitly set up with the Fair Work Commission and its Ombudsman. New Zealand is more oblique, approaching the issue via the existing Health and Safety, Employment Relations, Human Rights and Harassment Acts, and the new WorkSafe NZ regulator.

2. Australia offers a simple way for a victim to make a complaint to the Fair Work Commission, where the process and investigation takes over. There appears to be no need for an Industrial Relations advocate. The NZ process is harder to navigate and would daunt most victims without a professional guide. (For an unhelpful flowchart, see http://www.business.govt.nz/worksafe/tools-resources/bullying-preventiontools/flowchart-what-to-do)

3. The Fair Work Commission has a series of thresholds where it decides if there is a case to answer. Apparently all trivial or revenge-seeking complaints are spotted and rejected early. New Zealand has guidelines.

4. If the Australian matter moves as far as an Investigation, it remains the domain of the Fair Work Commission (impartial) or the associated Insurer (partial, since the policy holder is the Employer). The Investigator rules, subject to appeal. In New Zealand, the accused “bully employer” initiates the Investigation, which appears conflicted and unjust, but does not rule.

5. Penalties and Remedies: Australian Stop Bullying sanctions are tough, starting at Stop Bullying orders and escalating through the Commission’s powers and ultimately the High Courts. New Zealand’s penalties appear to begin with monetary compensation as determined in the Employment Tribunal.

6. The Australian presumption is that the employee stays on at the workplace; the NZ guidelines make no such assumption.

This is a new field of grievance action for both countries. A female lawyer described it to me as “this decade’s successor to last decade’s sexual harassment reforms” which caused such positive change in work and social behaviour and in our gender respect.

For more,

New Zealand:

http://www.business.govt.nz/worksafe/information-guidance/all-guidance-items/bullyingguidelines/01 http://www.business.govt.nz/worksafe/tools-resources/bullying-prevention-tools Australia: https://www.humanrights.gov.au/workplace-bullying-violence-harassment-and-bullying-fact-sheet http://www.fairwork.gov.au/employee-entitlements/bullying-and-harassment