Bullying, Banter or Brusque Management?

By Scott Wilson, Partner & Summer Pringle, Law Clerk

First published in The Press 18 May 2010

Employers must take all practicable steps to ensure employees’ safety, including safety from psychological harm. Employment law specialists Scott Wilson and Summer Pringle look at the implications of a recent case.

Relentless bullying at work led to the suicide of a Melbourne waitress and resulted in the prosecution of the cafe owner, his company and three employees.

The woman was subject to a litany of mental and physical abuse by her co-workers. They called her fat, ugly, stupid and a whore; spat on her; gossiped about her; taunted her about a previous suicide attempt; and poured fish oil on her bag and clothes.

The cafe owner was aware of the bullying but did nothing to stop it. Under Australian health and safety legislation, the cafe owner was fined AUD$220,000 for failing to provide a safe work environment. In addition, three employees were each fined between AUD$10,000 and AUD$45,000.

While this is an extreme case, the same fine could be made in New Zealand. The maximum fine under health and safety legislation is $250,000. Employees should also be aware that they can be held individually liable under human rights legislation if their bullying amounts to harassment. The maximum fine is $200,000.

Bullying can occur in different employment relationships - between a manager and an employee, an employee and a client, or among colleagues or co-workers.

The behaviour is not necessarily obvious. Workplace banter and brusque management are generally not categorised as bullying. But the line between what constitutes bullying and brusque management is far from clear. Dominant or blunt management and insensitive or rude behaviour is not usually deemed bullying. Further, the Employment Relations Authority recognises that some people are overly sensitive and take offence to behaviour which could be regarded as normal workplace banter.

In New Zealand, there is no specific definition as to what constitutes bullying but it is generally defined as unwanted and unwarranted behaviour which is offensive, intimidating or humiliating. It’s likely to be continuous or repeated, prolonged and deliberate. Specifically, bullying can include: verbal abuse such as name-calling or offensive language directed at the person; threats of violence; repeated humiliation in front of others; and teasing or cruel comments about any psychological problems.

An employer has a duty to provide a safe workplace. An employee should report any bullying so that the employer can investigate the problem. However, where the bullying is taking place “under the management’s nose,” an employer may be liable for not taking proactive steps to address the situation - even where no concerns or complaints have been raised.

Where a report has been received or the employer is aware of potential bullying, the employer should, among other things, undertake a full and fair investigation. The employer can then decide what further reasonable steps should be taken.

Extreme cases of bullying, such as that of the Melbourne waitress, are thankfully rare. However, bullying in the workplace is a serious issue with serious consequences for all.

A recent survey found that one in five Kiwi workers suffer from workplace bullying, one of the worst rates in the world. Overall 17.8 per cent of respondents were identified as victims of bullying. The international range was between 5 per cent and 20 per cent.

Lead researcher Professor Tim Bentley said workplace bullying in New Zealand could be "a billion-dollar problem". It hit costs because of decreases in productivity due to worker absenteeism, staff turnover, lower staff satisfaction and time spent investigating bullying.

Scott Wilson is a partner and employment law specialist at Duncan Cotterill. S.wilson@DuncanCotterill.com

IN A NUTSHELL

Bullying has no specific definition but is generally defined as unwanted and unwarranted behaviour which is offensive, intimidating or humiliating.
Employees have a duty to report incidents of bullying to their employer.
Employers have a duty to investigate incidents of bullying whether or not any concerns or complaints have been raised.
Employers can be fined up to $250,000 for failing to take all practical steps to ensure employees’ safety, including safety from psychological harm (i.e. bullying).
Employees can be fined up to $200,000 if they engage in bullying behaviour that amounts to harassment.

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