Bullying hurts. Most know the sting of a hurtful jibe or
Being teased as a child forced me to grow a thick skin. I
don't wince if someone calls me freckle face any more. But it
becomes more sinister when adults are involved; especially at
work where many of us spend most of our waking day.
Why should employers care?
Because it pays to. Bullies harm people, productivity and
ultimately the bottom line. Like any unidentified hazard,
bullies cause casualties before you even know they exist. An
employer can no longer pretend that hurt feelings won't cost
An employee may raise a personal grievance (PG) for
unjustified dismissal even if they have resigned because of a
bully - an employee forced to resign because their employer
failed to take their concerns seriously can claim they have
been constructively dismissed. The Labour Court called this
the "... wolf of dismissal in the sheep's clothing of
A forced resignation could result from an employer behaving
in a way that seriously damaged their employee's trust and
confidence in them. An employer may undermine an employee's
trust by failing to take all practicable steps to ensure
their safety at work. ii Think of a
situation where an employer fails to follow up a complaint of
bullying behaviour causing the employee to become depressed
due to work-related stress. Bullying in this sense is
hazardous to your employees' health and has to be dealt with
under the Health and Safety in Employment Act 1992.
Bullying or just plain rude?
Forgetting to wish your workmate "Happy Birthday" or
providing constructive criticism about an employee's
performance are unlikely to meet the threshold in the absence
of something more calculated or unfair. The Employment
Relations Authority has accepted that bullying is behaviour
... repeated and carried out with a desire to gain power or
exert dominance and an intention to cause fear and distress.
This behaviour usually includes elements of personal
denigration and disdain of the person subject to it. It is
intended to control the behaviour or actions of its target in
particular ways. iii
Isolated incidents of rudeness are unlikely to support a
constructive dismissal claim. The Labour Court stated: ...
the law does not compel parties to a contract to do more than
perform it and it does not require them to perform it
politely, nor is this Court empowered to enforce courtesy in
the workplace, no matter how desirable in that environment
that quality undoubtedly is.
Not my problem?
Clearly an employer is responsible if they bully an employee
directly. But an employer is also responsible for the actions
of an employee who has authority over another (such as a
manager). iv An employer must also
ensure that members of the public and independent contractors
do not create a hazardous working environment for their
Managers with a domineering, blunt and abrupt management
style shouldn't assume staff can bat it back to avoid their
obligations either. It is not acceptable for a manager to
expect an employee to "sling it back" even if other staff do,
to keep an aggressive exchange even. v
This is especially so if a manager goes beyond generally
accepted management norms. Similarly, an employer may not be
justified in readily accepting a resignation where an
employee faces difficulty dealing with a well known hazard
that the employer has failed to provide training on - like
the aggressive dogs that Power Meter Readers might face.
The risk of bullying from the public can also pose a risk
worth remedying. For example, Council employees have been
held to have reasonably objected to wearing name badges that
displayed their surnames due to their concern that displaying
their surnames could enable disgruntled members of the public
to track them down to their home address and confront them.
vii In the case referred to, the
Employment Court accepted that:
It was not being unduly alarmist to accept that there is a
reasonable possibility that they could be subjected to
violence or harassment at home as a result of being
identified at work by a hostile member of the public.
Removing surnames from badges amounted to an "entirely
practicable" step for the employer to take; the requirement
to wear badges with surnames, unreasonable. ix
Dealing with it
Increase awareness of the problem posed by bullies in the
workplace. Employers should start by checking that a robust
and realistic policy on bullying is in place, changes
consulted on, its contents regularly reviewed and that
managers apply it consistently.
Clearly identify bullying as a hazard and aim to establish a
culture that treats complaints seriously and encourages
employees to report concerning behaviour - whether as a
witness, victim or a bully. Employers shouldn't wait until a
serious problem arises before putting in place systems to
deal with it.
References: i At 803, New Zealand Woollen
Workers IUOW v Distinctive Knitwear New Zealand Ltd (1990)
ERNZ Sel Cas 791. ii Section 6, Health and Safety in
Employment Act 1992. iii At 49, Menelda v Publicis Mojo Ltd
 NZERA Auckland AA403/07. iv Section 103(2) Employment
Relations Act 2000 v See Edmonds v Attorney General  1
ERNZ 1 vi Auckland Electric Power Board v Auckland Provincial
District Local Authorities Officers Industrial Union Of
Workers (Inc)  1 ERNZ 168. vii Makeham v New Plymouth
District Council  ERNZ 49. viii Ibid, at 33. ix Ibid,
Lucia Vincent is a Senior Solicitor based in the Dunedin
office of Janet Copeland Law, Employment Lawyers. For advice
on any aspect of the employment relationship, you can contact
Lucia at Lucia.Vincent@JCLaw.co.nz
or on 03 474 5826 or 021 223 4694.
We remind you that while this article provides commentary on
employment law topics, it should not be used as a substitute
for legal or professional advice for specific situations.
Please seek guidance from your employment lawyer for any
questions specific to your workplace.