As the name suggests, the Guide is intended to provide guidance for workplaces and doesn’t have legal force like an Act or Regulation. This means that employers aren’t legally obliged to comply with it. Nonetheless, the Guide is a statement of what our new health and safety regulator considers to be best practice when it comes to preventing and responding to workplace bullying. It is also a signal from WorkSafe that it intends to approach workplace bullying as a serious health and safety hazard worthy of its attention.
It’s likely that the Guide will also be referenced by WorkSafe in health and safety investigations, by the employment institutions in bullying-related personal grievances, and by the civil courts in the event that WorkSafe takes a bullying related health and safety prosecution.
For all those reasons, employers, managers and HR teams should pay careful attention to it.
At around 70 pages in length, the Guide contains rather a lot of detail! In this article, we cover some of the key features.
The Guide sets the scene by defining workplace bullying, and outlining its impacts on the workplace. The definition is the same as that recently adopted by Australia in its Fair Work Act.
Notably, the definition is a very broad one: “Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety”. This differs slightly from the key characteristics of bullying generally referenced in New Zealand case law, which tend to focus on the motivation behind the conduct (such as to gain power and control over the person or to cause fear or distress) rather than the risk to health and safety.
The definition has three key components: (1) repeated (2) unreasonable actions (3) impacting health and safety.
As well as the usual direct actions such as victimising, humiliating, intimidating and threatening a person, the Guide also lists a number of indirect behaviours that can amount to bullying. This includes failing to return calls, not giving credit where it’s due, supplying unclear information and not giving enough training. While such circumstances are of course undesirable, in many cases they are simply part of ordinary working relationships and will not amount to bullying.
Likewise, the Guide stretches the commonly accepted definitions of bullying by including a category of “institutional bullying”. The Guide says that this includes where an organisation’s norms, culture or practice allow work structures, practices, polices or requirements “which unreasonably burden staff without concern for their wellbeing”. It gives a setting unrealistic productivity targets for staff, and pressuring staff to work late as examples of institutional bullying.
Importantly for employers, the Guide does provide a list of circumstances that will not amount to bullying, which includes:
Advice for employees
The second part of the Guide includes some useful advice for employees about what to do if you are being bullied at work. This includes an ‘am I being bullied?’ flow chart, and information about options for raising and resolving the situation, ranging from low-key informal solutions through to making a formal complaint to the employer, raising a personal grievance, or complaining to WorkSafe.
While raising a personal grievance has generally been the ‘traditional’ route for an aggrieved employee to take, we anticipate that employees will increasingly opt to report bullying to WorkSafe instead or as well. Employers should therefore expect that in some cases an allegation of bullying may result in the need to deal with an external investigation by WorkSafe alongside their internal investigation and dispute resolution processes. In addition, should WorkSafe conclude that an employer has failed to take all practicable steps to protect its employees from harm caused by bullying; there is a risk of prosecution.
Advice for employers
The remainder of the Guide focusses on advice for employers including information on preventing, managing and measuring bullying in the workplace. The Guide advises that when dealing with a report of workplace bullying, employers should:
It emphasises that there may be a range of appropriate responses to bullying depending on the seriousness of the alleged conduct, ranging from resolving things informally through direct resolution with the parties concerned, through to a formal investigation process. Investigations need to follow a careful process and we recommend that front-end advice is sought when bullying complaints emerge. A failure by an employer to appropriately respond can have serious repercussions.
The Guide also includes a number of useful tools for employers, such as a template form for notification of undesirable behaviour, a sample bullying policy, and hazard register.
Employers, managers and HR teams should become familiar with the guide, and assess how the practices, policies and processes currently operating in the workplace measure up to the Guide’s best practice standards. If they don’t, consider using the tools and resources in the Guide to make some positive changes. At the very least, an organisation should have a policy covering bullying and look to implement appropriate training.
Expect the Guide to be referenced by employees alleging bullying, and by their unions, advocates and legal representatives.
Be prepared for WorkSafe to play a more active and visible role in investigating workplace bullying – and look out for the possibility of bullying-related health and safety prosecutions.
If you need further advice on your obligations or the adequacy of your existing policies and procedures, or if you would like assistance with a bullying investigation or dispute resolution process, please get in touch with one of our experts.