If you are being bullied at work, you can raise a personal grievance under the Employment Relations Act 2000, and ask your employer to address it. You also have the option to raise a complaint under the The Human Rights Act 1993 if the bullying is linked to one of the prohibited grounds of discrimination (but you cannot raise a complaint under both).
What is bullying?
There is no legal definition of bullying in the New Zealand law, but the accepted definition used by WorkSafe New Zealand is “repeated and unreasonable behaviour directed towards a worker or a group of workers than can lead to physical or psychological harm”. For conduct to fit within the definition of bullying it must be:
- Unreasonable – Conduct is unreasonable if a reasonable person looking at it from the outside would say it was unreasonable.
- Repeated – A single incident of unreasonable behaviour (although still capable of being harassment or discrimination) is not considered bullying. Bullying is when there is ongoing unreasonable behaviour.
- Capable of causing harm – It is not necessary for the unreasonable conduct to actually cause physical or psychological harm, but it must have the potential to do so.
- Bullying can be direct (for instance yelling at a victim), or it can be more subtle and indirect (for instance putting up posters about a group, the victim belongs too).
- Bullying can take many forms too. It can be verbal comments (like hurtful jokes or abuse), written words (like an email or document), images (like offensive jokes, memes or posters) or physical conduct (like act of violence or harassment), or conduct (like excluding others).
- Some conduct which is capable of being bullying, or which may not fit within the definition of bullying, can still be illegal (for instance sexual or racial harassment, or acts of discrimination).
What are the signs and symptoms of bullying?
Bullying is harmful to workers in many different ways. It can impact negatively how workers enjoy being at work, and also impact their personal lives outside of work. A worker that is being bullied may show some of the following signs:
- A decline in their mental health (for instance increased anxiety, stress, depression or even post-traumatic stress syndrome);
- Low self-esteem, second guessing themself, or poor performance;
- Loss of enjoyment of work;
- Avoidant behaviour (for instance not attending social events or shying away from certain tasks, people or environments);
- Increased absence from work (for instance an increase in sick days or other forms of absence from work);
- Substance abuse; or
- Staff resigning or quiet quitting.
What is the difference between harassment, discrimination and bullying?
Sometimes conduct which is capable of being bullying, also fits the definition of racial or sexual harassment and discrimination. For instance, if a particular group of workers is being repeatedly excluded from opportunities due to their colour, race, ethnicity or national origin this could be bullying and racial discrimination. If a worker is repeatedly subjected to unwanted and offensive sexual images or jokes from a co-worker it could be bullying and sexual harassment.
Unlike bullying behaviour, which has to be repeated, a single occasion of harassment or discrimination could be grounds to raise a personal grievance. Bullying requires the conduct to be repeated.
Conduct that is discrimination or harassment can be dealt with under the Human Rights Act 1993 (and related forums like the Human Rights Commission and the Human Rights Review Tribunal). Other personal grievances, that does not fit within the definitions or harassment or discrimination must be raised under the Employment Relations Act 2000 its related forums (like mediation through MBIE and the Employment Relations Authority).
How is discrimination in the workplace defined?
Discrimination in the workplace happens when a person or a group of people is treated unfairly or unequally because of specific characteristics (called prohibited grounds):
- age
- race or colour
- ethnicity or national origins
- sex (including pregnancy or childbirth)
- sexual orientation
- disability
- religious or ethical belief
- marital or family status
- employment status
- political opinion
- being affected by family violence
- involvement in union activities, including claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.
How is sexual and racial harassment in the workplace defined?
Sexual harassment is when there is:
- a direct or indirect requests for sexual activity with a promise of better treatment at work, or a threat of either worse treatment at work; or
- unwanted or offensive behaviours of a sexual nature that negatively impacts the employee’s employment, performance, or job satisfaction.
The types of behaviour can be in the form of written or spoken language, visual material such as pictures, diagrams, photos, and videos, or physical behaviour.
Racial harassment is when there is language (written or spoken) or visual material, or physical behaviour that directly or indirectly:
- expresses hostility against, or brings the employee into contempt or ridicule, because of their race, colour, or ethnic or national origins of the employe;
- is hurtful or offensive to the employee; and
- has a negative effect the employee’s employment, job performance or job satisfaction.
For both racial and sexual harassment, the harasser does not have to intend to cause hurt or offence or a loss of enjoyment of work, and the person who is the victim does not have to tell the offender the conduct is hurtful, offensive or unwanted.
What should I do if I am being bullied at work?
The longer bullying goes unaddressed, the more harmful the impact is likely to be. If an employee feels comfortable, they can raise the issue directly with the person bullying them, and ask then to stop. If this does not result in the desired outcome, it may be necessary to ask the employer to help.
Employees own their employers a duty of good faith and should raise issues as soon as they arise, so they can be addressed before they escalate. If an employer is not aware of an issue, they may not be able to help. Employees can raise a personal grievance, but must do so within 90 days of the event, or becoming aware of the event (whichever is later). If the conduct is sexual harassment the victim has up to 12 months to raise the issue.
Once an employer is aware of the issue, they must comply with their duty of good faith. They have to be responsive and communicative, as well as active and constructive in dealing with the issue brought to their attention. Employers also have a duty under the Health and Safety at Work Act 2015, to eliminate risks or to mitigate them (including the risk of harm caused by bullying to the physical and psychological well-being of their workers).
Generally, an employer will investigate the issue brought to their attention, to determine the facts. If the employer finds there is bullying they can take disciplinary action against another employee. If the bully is not a co-worker, your employer should take steps to prevent the bullying from continuing, regardless.
If an employer does not respond appropriately, a worker can escalate the issue by lodging a statement of problem in the Employment Relations Authority or with the Human Rights Commission. In some instances, a complaint can also be made directly to WorkSafe.
An employee who feels unsure about how to proceed, should look at the bullying, harassment and discrimination policies of their workplace for guidance. If the workplace has a HR department, they can also ask for guidance from that department. If this is not helpful or adequate, the employee may want to seek advice and support from an employment lawyer, union or trusted colleague or friend. Some workplaces also offer free and confidential counselling.
What should I do if am being bullied by my boss?
If an employee is being bullied by their boss, they should still raise it in the same manner. If the boss does not respond appropriately, it may be necessary to seek outside assistance. Instructing a lawyer, can help to make sure the employer takes the issue seriously and also that the outcome is appropriate.
Where can I get help and support?
If you are experiencing bullying or harassment at work, it is important to remember that you are not alone. There are people who can help you. At Empower Law, we can provide advice about your rights and options. We can also assist with mediation, external independent instigations into the issue, or with proceedings in Employment Relations Authority or Human Rights Review Tribunal.
To read more about how to raise a personal grievance, click here.
