Bullying complaints require a calm, proportionate response

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It is becoming increasingly common for bullying complaints to be raised by employees in the workplace. This increase is likely due to increased media attention on bullying and widely-publicised employer obligations to provide safe workplaces under the Health and Safety at Work Act 2015.

What is also noticeable is that some employers are increasingly overreacting to such complaints. By no means am I suggesting that the complaints should not be addressed promptly and appropriately; they most definitely should. However, the response should be proportionate to the complaint.

A major contributor to employers overreacting is a burgeoning cottage industry of “experts” who appear to be recommending to employers that an allegation by one employee against another warrants a company-wide investigation into “workplace culture”. Unfortunately, those who recommend such an extensive investigation also stand to gain financially by carrying out the investigation. So how can employers be sure that such an investigation is actually required?

Firstly, when a bullying allegation is raised by one employee against another, or against the employer, the allegation needs to be sufficiently detailed so that an employer can ascertain whether it actually constitutes bullying. Just because an employee states they feel bullied, does not necessarily make it so.

In February 2017, Worksafe published a guide entitled “Bullying at Work: Advice for Workers”. This is available free of charge online and is equally useful to employers and employees as a starting point. In particular, the guide sets out at page 5 behaviour that is, and is not, bullying. Those aspects of the guidelines are worth replicating here in full.

“Workplace bullying is:
• repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm.

• Repeated behaviour is persistent (occurs more than once) and can involve a range of actions over time.

• Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.

• Bullying may also include harassment, discrimination or violence (see Section 4  of this guide for how these are dealt with).

Workplace bullying is not:
• one-off or occasional instances of forgetfulness, rudeness or tactlessness

• setting high performance standards

• constructive feedback and legitimate advice  or peer review

• a manager requiring reasonable verbal or written work instructions to be carried out

• warning or disciplining workers in line with  the business or undertaking’s code of conduct

• a single incident of unreasonable behaviour

• reasonable management actions delivered  in a reasonable way

• differences in opinion or personality clashes that do not escalate into bullying, harassment or violence.”

So, the first step in dealing with any complaint of bullying is to ascertain whether it actually is. Unquestionably, the conduct needs to be repeated, and one-off interchanges should not be classified as bullying, although, depending on the conduct complained of, they may be classified as misconduct or serious misconduct.

If the allegations lack sufficient detail to establish whether the complained-of conduct is bullying, then the complainant should be asked to provide precise information of times, places and the nature of the conduct so a decision can be made. This information is required in any event if the matter is to proceed, and must be provided to the other employee when asking them to attend a disciplinary meeting.

Where the complaint is from one employee about another employee, both must be separately interviewed to get their views on the matter, along with any other persons who may have witnessed the alleged conduct. Employers need to check witness accounts for consistency and go back to clarify any apparent inconsistencies, to ensure that a witness is actually providing factual information, rather than just supporting a work colleague.

Once all the information has been collected, the employer is then in a better position to make the right decision on how to proceed. Both the complainant and the complained-of employee must be informed of the outcome. If, after full investigation, the problem appears to be more of a personality clash than actual bullying, then MBIE provides free mediation services that can be utilised to try and improve the relationship. If the allegations are found to be bullying, then depending on the severity of the conduct, the outcome may be a final written warning or dismissal.

The problem with unnecessarily instigating workplace-wide investigations is they are reminiscent of the Salem Witch Trials, where employees who had not previously thought they were being bullied by a disliked colleague, may suddenly be encouraged to believe that they are. Disharmony and dysfunction can swiftly ensue, and an employer may find that the investigation has caused far more harm to the workplace than good.

Further, be under no illusion of the cost of these investigations. They involve interviews with every employee, transcripts of the interviews, and confirmation by interviewees that the information they have provided is correct, all culminating in a very lengthy report. While this may be warranted where the allegations appear to be widespread or where the workplace as a whole has been complained of as “toxic”, such an investigation would not be warranted where the allegations are only by one employee against another.

Employers would be better off using the money towards something that builds camaraderie and stronger workplace relationships, such as an employee day out or a mid-year Christmas party.

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About Author

Erin Burke

Employment Lawyer and Director at Practica Legal Email: erin@practicalegal.co.nz phone: 027 459 3375