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Bullies Beware - New Guidelines for Workplace Bullying Released by WorkSafe NZ

In February, WorkSafe New Zealand released its Best Practice Guidelines on Preventing and Responding to Workplace Bullying (Guidelines). The Guidelines are supported by a set of online tools, which can be used by both employers and employees, to help deal with workplace bullying and respond to situations before they get out of hand.

What is bullying?

The Guidelines provide a clear definition of bullying, a first for New Zealand. Bullying is defined as "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". The Guidelines also provide guidance on what behaviour does not constitute bullying, for example one-off instances of rudeness or reasonable management actions.

The Guidelines profile different types of workplace bullies and bullying. Bullying does not have to be personal, with the Guidelines introducing the concept of 'institutional bullying', which can occur when a workplace's practices, structures or expectations place unreasonable burdens on employees. One interesting example of institutional bullying cited in the Guidelines is where pressure was placed on employees at banks in Christchurch, to meet nationally-applied sales targets after the earthquakes. Targets were applied nationally, without consideration of relevant external factors.

The definition set out in the Guidelines signals a departure from the definition of bullying historically applied by the Courts in previous cases, which tends to focus on the motivation behind the bully's actions. It will be interesting to see how the Courts and the Employment Relations Authority will interpret this new definition.

Why is bullying the employer's business?

It is no secret that happy and healthy employees perform better, and are more productive. Furthermore, employers who fail to appropriately deal with bullying run the risk of breaching their obligations under the Employment Relations Act 2000 (ERA), the Health and Safety in Employment Act 1992 (HSE Act), the Human Rights Act 1993 and the Harassment Act 1997.

Under the HSE Act, employers have to ensure employees at work are not exposed to hazards, which includes bullying. Employers can be subject to fines of up to $500,000 and imprisonment of up to two years for failing to keep employees safe at work.

Alongside the risk of criminal prosecution, by failing to address bullying in the workplace employers can also be at risk of a personal grievance claim for unjustified disadvantage from 'bullied' employees. At worst, an employee could claim constructive dismissal, where the employee resigns because they no longer feel they can put up with the bullying. There is also the risk of a breach of contract, being the implied obligation in every employment agreement to provide a safe workplace. A successful personal grievance claim on any of these grounds could result in orders for reimbursement of lost wages, compensation for hurt and humiliation, and penalties of up to $20,000 under the ERA.

The financial costs of bullying should also serve as an incentive for employers to deal with cases of workplace bullying efficiently and effectively. The Australian Government’s recent Inquiry into Workplace Bullying estimated that workplace bullying costs the Australian economy from $6 billion to $36 billion every year (an average of $17,000 to $24,000 per case). Experts have suggested that the impact on New Zealand's economy is likely to be proportionately similar.

The Guidelines also highlight the effect bullying can have on an employer's business, for example increased absenteeism and low morale resulting in impaired performance.

How can the Guidelines help?

The Guidelines provide helpful tools and tips for both employees and employers on preventing and managing bullying.

Advice for employees includes how to assess if you are being bullied, tips on dealing with stress, and a number of low-key solutions which can be employed against bullies.

Advice for employers includes process or system controls which can help to reduce instances of bullying, information on investigation processes and a number of resources, including templates and policies.

A number of online tools also accompany the Guidelines. These include a calculator tool for employers to assess the cost of bullying and a workplace assessment tool that measures organisational culture with a view to preventing bullying.

What should employers do?

The Guidelines have been widely publicised in the media indicating that bullying is a hot topic for both WorkSafe New Zealand and New Zealand Employers.

A copy of the Guidelines can be found on the Worksafe New Zealand website. Employers should use the Guidelines when revising their codes of conduct, health and safety policies, disciplinary policies and/or any policies designed to deal with workplace bullying. Any systems or processes currently used to deal with bullying may also need to review in light of the new best practice standards.

We can assist on the drafting or review of any relevant policies you may wish to introduce or amend, and/or advise on your current systems in place to deal with bullying. Given each workplace is different; the relevant notices and procedures should be tailored to suit your workplace.

Minimum Wage set to rise

The Government has recently announced that on 1 April 2014 the adult minimum will increase by 50c, from $13.75 to $14.25 an hour. The Starting-Out and Training minimum wages are also increasing, from $11 to $11.40 an hour, maintaining the previous proportion of 80 percent of the minimum wage.

From 1 April, the new rates can be initiated for all employees (aged 16 and over) who are currently on the minimum wage, regardless of whether they are paid by the hour or on salary. For salaried employees, employers must ensure that employees are receiving at least $14.25 for the hours worked in any pay period.

If you have any questions or require further information regarding workplace bullying and the minimum wage increase, including how both will affect you, please contact us.

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