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New MBIE guidelines for workplace bullying sets stage for legal wrangles

Dirty looks, scapegoating, and the silent treatment — these are just a few bad behaviours mentioned in the Ministry of Business, Innovation and Employment’s just released guidelines related to workplace bullying.

Unlike Australia, New Zealand does not have laws specific to workplace bullying, but MBIE has released best practices for employers which lawyers say could be used in future court squabbles.

Professor Tim Bentley, Director of AUT University's NZ Work Research Institute, warns workplace bullying is prevalent across the country and employers are hemorrhaging money in legal wrangles and lost worker productivity.

The Australian Productivity Commission estimates the total cost of workplace bullying in Australia between $6 billion and $36 billion annually.

Using that estimate and taking New Zealand’s smaller population into account, Mr Bentley says, it’s costing millions more than other workplace hazards which receive greater attention.

“Bullying slips under the radar a bit, but it affects far more people,” he says.

Mr Bentley’s past research suggests New Zealand stacks up as one of the worst countries in the prevalence of workplace bullying. Internationally 2% to 20% of workers reported workplace bullying, while 18% of those surveyed in New Zealand reported the behaviour.

In the public sector, other researchers have found 30% or more, he says.

Mr Bentley, who is also a professor at the Auckland University of Technology, assisted MBIE in writing the guidelines. The 69-page book can be daunting for a small-business owner, he says.

All employers should at least have a policy and take a look at the tools available in the guidelines, he says.

The MBIE warns employers who don’t deal with bullying risk legal action under the Employment Relations Act, Health and Safety in Employment Act, Human Rights Act or the Harassment Act.

None of these specifically mention bullying, but data shows the Employment Relations Authority has leaned towards workers in recent judgments with an increase in money awarded for hurt feelings.

An analysis by the Employers and Manufacturers Association found 67%, or 245, of 366 personal grievance awards made by the Employment Relations Authority in 2012 were in favour of employees.

That’s up 13% on 2011, when 201 of 371 claims favoured employees.

On average, the authority awarded more compensation to employees for hurt feelings and humiliation – up $634, or 13%, from the year prior to $5610.

Employment lawyer John Rooney of Simpson Grierson says the lengthy guidelines and its definitions would support claims brought to the Employment Relations Authority.

“It will be an important and persuasive document in terms of future bullying claims,” he says. “It’s not going to be the be all and end all in the way a piece of legislation would be. But it’s certainly going to be an important document.”

Past MBIE documents outlining best practices — working at heights, for example — have been used to bring breaches of related laws to ERA proceedings, he says. 

The new MBIE guidelines say bullying must be repeated, unreasonable, targeted and creating risk to health and safety. A single instance can’t be deemed as bullying.

Repeated behaviour means there is plenty of time for prevention with well-documented and correct intervention, which is why the ministry included templates for businesses to use. Among these are a form for workers to fill out if they feel distressed and an assessment tool to measure management competencies.

“There are lots of things human resources can do such as not hiring bullies, or promoting and rewarding the behaviour,” Mr Bentley says.

Employment lawyer Megan Richards with Minter Ellison Rudd Watts says although many bullying claims are genuine, there are many instances of underperforming workers who cry bullying.

“Employers shouldn’t panic too much, but they should have their own policies in place,” she says.

If employers are hiring for a high-stress job, she says, it’s important be upfront about that in the recruiting process.

Mr Bentley says New Zealand is behind other countries by just now releasing guidelines with no legislative authority.

“Once the cultural change comes through guidelines like this, you start to change and develop a healthier work culture and society,” he says.

Obviously different sectors with have their own cultures and thresholds in terms of what’s acceptable, Mr Bentley says. Chef Gordon Ramsey’s behaviour might be common in a high-pressure situation of a restaurant, but not an office environment.

sflores@nbr.co.nz

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