Workplace Bullying and Harassment

Workplace bullying is defined as repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. The key elements are that the behaviour must be repeated, unreasonable, and pose a health and safety risk.

Examples of bullying behaviour include verbal abuse, threats, humiliation in front of colleagues, excessive criticism, unreasonable work demands, deliberate exclusion from work activities, and sabotaging work equipment or performance. The behaviour doesn't need to be intentional to constitute bullying—what matters is the impact on the worker.

It's important to distinguish bullying from legitimate management actions. Reasonable performance management, disciplinary processes conducted fairly, and directing work activities are not bullying, even if they cause stress. However, these legitimate actions can become bullying if they're carried out unreasonably or excessively.

The impact of bullying extends beyond the workplace, often affecting workers' mental health, physical wellbeing, and family relationships. Recognising bullying early and taking appropriate action is crucial for preventing escalation and protecting your rights.

Harassment in the workplace involves unwelcome conduct that is based on prohibited grounds under the Human Rights Act. These grounds include sex, race, disability, age, sexual orientation, religious belief, and several others. Unlike bullying, harassment doesn't need to be repeated—a single serious incident can constitute harassment.

Sexual harassment is one of the most common forms, involving unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature. This can include inappropriate comments, unwanted touching, displaying offensive material, or creating a sexually hostile environment.

Racial harassment might involve racist jokes, comments about appearance or accent, exclusion based on ethnicity, or creating a hostile environment for people of particular racial backgrounds. Similarly, disability harassment could include mocking someone's disability, failing to provide reasonable accommodations, or treating someone unfavourably because of their disability.

Age-based harassment often affects older workers through comments about retirement, assumptions about technological competence, or exclusion from opportunities based on age. The key is that the conduct must be unwelcome and based on a prohibited ground of discrimination.

Employers have clear legal obligations to prevent and address bullying and harassment in the workplace. Under health and safety legislation, employers must take all practicable steps to ensure the health and safety of workers, which includes protecting them from bullying and harassment.

This duty requires employers to have appropriate policies and procedures in place, provide training to managers and staff, and create a culture where bullying and harassment are not tolerated. Employers should conduct risk assessments to identify potential bullying and harassment risks and implement controls to manage these risks.

When complaints are made, employers must investigate them promptly, fairly, and confidentially. This includes taking interim measures to protect the complainant during the investigation, such as separating the parties or adjusting work arrangements. The investigation should be conducted by someone with appropriate skills and independence.

Employers also have obligations under the Human Rights Act to provide a workplace free from discrimination and harassment. Failure to meet these obligations can result in significant penalties and compensation claims. Additionally, employers must not retaliate against workers who make complaints in good faith.

Thorough documentation is crucial for any bullying or harassment case. Start keeping detailed records as soon as you recognise a pattern of problematic behaviour. Record the date, time, location, and description of each incident, including exactly what was said or done and who was present.

Save all relevant communications including emails, text messages, and written notes. Take screenshots of social media posts or messaging apps if the harassment extends to digital platforms. If there are witnesses, note their names and contact details, and consider asking them to provide written statements.

Keep records of how the incidents have affected you, including any medical treatment sought, time off work, or impact on your performance. If you report incidents to your employer, keep copies of all complaints and correspondence, including your employer's responses or lack thereof.

Consider keeping a diary of your emotional and physical state, noting symptoms like anxiety, depression, sleep problems, or physical illness that may be related to the bullying or harassment. This contemporaneous record can be powerful evidence of the impact on your wellbeing.

Most workplaces should have policies and procedures for dealing with bullying and harassment complaints. Familiarise yourself with these procedures, which are often found in employee handbooks or on company intranets. However, don't let inadequate policies prevent you from making a complaint.

You can usually make a complaint to your direct manager, human resources department, or through a designated complaints process. If your manager is the source of the problem, you should be able to escalate to their manager or HR. Some organisations have external complaint mechanisms or employee assistance programmes.

When making a complaint, be specific about the behaviour you're experiencing, provide dates and details, and explain how it's affecting you. Request that the matter be investigated and that appropriate action be taken. Ask for confirmation that your complaint has been received and for updates on the investigation process.

Your employer should investigate your complaint promptly and fairly. This typically involves interviewing you, the alleged perpetrator, and any witnesses. You should be kept informed of progress and the outcome. If you're not satisfied with how your complaint is handled, you may have grounds for a personal grievance.

If your employer fails to address bullying or harassment adequately, you have several legal options. A personal grievance can be raised for unjustifiable action, which includes failing to deal with bullying or harassment complaints properly. You have 90 days from when the action occurred or when you became aware it was unjustifiable.

For harassment based on prohibited grounds, you can also make a complaint to the Human Rights Commission, which offers mediation services and can investigate discrimination complaints. This process is free and can run alongside employment proceedings.

In serious cases, you might be able to claim compensation for lost wages, hurt and humiliation, and consequential losses such as medical expenses or career damage. The amount depends on the severity of the behaviour, its impact on you, and your employer's response to complaints.

If the bullying or harassment has caused significant psychological injury, you might also have a claim under ACC or potentially a common law claim for damages. Mediation is often the first step in resolving employment disputes and can be an effective way to reach a settlement without going to the Employment Relations Authority.

Workplace bullying and harassment are health and safety issues under New Zealand law. WorkSafe New Zealand has the power to investigate and prosecute employers who fail to provide a safe workplace, including psychological safety from bullying and harassment.

If your employer is not addressing bullying or harassment, you can make a complaint to WorkSafe. They can investigate and potentially prosecute your employer, issue improvement notices, or impose penalties. This process is separate from personal grievance procedures and doesn't affect your right to pursue other legal remedies.

The health and safety framework recognises that psychological harm can be just as serious as physical injury. Employers must identify psychosocial hazards, assess the risks, and implement controls to eliminate or minimise these risks. This includes having policies, training, and effective complaint procedures.

Workers also have rights under health and safety legislation, including the right to refuse unsafe work if they reasonably believe it poses a serious risk to their health and safety. However, this is a significant step that should be taken with legal advice, as it can have employment implications.

Consider seeking legal advice early in the process, particularly if the bullying or harassment is serious, involves senior management, or if you're concerned about retaliation. A lawyer can help you understand your rights, assess the strength of your case, and advise on the best approach to take.

Legal help is particularly important if your employer fails to investigate your complaint properly, if you're facing disciplinary action after making a complaint, or if you're considering resigning due to the treatment you're receiving. Constructive dismissal claims can be complex and require careful handling.

If you're offered a settlement by your employer, it's crucial to get legal advice before signing anything. Settlement agreements often include confidentiality clauses and releases that prevent you from pursuing further claims. A lawyer can ensure the settlement is fair and that you understand what you're agreeing to.

Don't wait until the 90-day deadline for personal grievances is approaching. Early legal advice can help you preserve your rights, gather appropriate evidence, and potentially resolve the matter more quickly and effectively. Many employment lawyers offer initial consultations to assess your situation and explain your options.