Workplace bullying is a difficult thing to define. Individual subjectivity and different levels of sensitivity mean that behaviour that looks like part of a normal workplace to some, may seem like bullying to others. Many forms of bullying are not obvious, and often an individual may not realise that they are the victim of workplace bullying. While WorkSafe New Zealand has released guidelines to help identify and clarify whether you are being bullied, these seem to be misaligned with the standards set in current case law, providing a significantly lower threshold to finding that certain behaviours amount to bullying.

The guide defines bullying as “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”.

WorkSafe, in conjunction with the Ministry of Business, Innovation and Employment, released a guide in 2014 that aimed to help identify and define workplace bullying, as well as proactively dealing with its prevention and management. The guide provides advice for employees in assessing whether they are being bullied and a range of solutions, as well as advising employers on how to respond to bullying allegations. The need for this guidance arose from poor management and understanding of bullying in many organisations, as well as increasing information showing how serious the impact of bullying can be, both financially and psychologically. WorkSafe provides the guide on their website, which also features tools such as a checklist and flowchart to identify whether you are being bullied.

The guide defines bullying as “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. A single incident is generally not considered to be workplace bullying. The ‘Bullying behaviours – personal and task related ’ table features a variety of actions that WorkSafe classifies as bullying. The table features both direct and indirect examples of bullying, with the guide advising workers to identify whether they are experiencing examples of this behaviour and then consider whether it meets the test of being unreasonable, repeated and health endangering.

In comparison to the case law, the WorkSafe guidelines present a relatively low standard for what constitutes bullying. The guide seems to fail to appreciate that a level of severity has been required in the decisions of the Employment Relations Authority and Employment Court, in order to find that a worker has been bullied. While the guide lists matters such as belittling remarks, public humiliation and threats of violence as bullying behaviours, it also includes such minor behaviours as suggestive glances, reducing opportunities for expression and being given unpleasant jobs. The guide also suggests that such behaviours do not have to be intentional, which is contrary to current case law.

The common law test for bullying has been articulated as something someone repeatedly does or says to gain power and dominance over another, with behaviour that usually includes elements of personal denigration (Isaac v Chief Executive of the Ministry of Social Development). This behaviour must include repeated actions, carried out with the intention to cause fear or distress (Kneebone v Schizophrenia Fellowship). Workplace bullying is characterised by “repeated and persistent offensive, abusive, intimidating, malicious, or insulting behaviour such that the recipient suffers detrimental effects to their feeling of safety, wellbeing and general enjoyment of the work environment” (Mitchell v Eastland Group Ltd).

What has been held to be bullying behaviour:

  • Cruel remarks about an employee’s psychological problems, telling an employee he wasn’t wanted and denying him income (Roberts v Japan Auto) (NZ) Limited.
  • In (Cartwright v Commissioner of Police), bullying was found where there was the use of bad language in a professional setting, the employee’s authority and duties were severely restricted, and his complaints were not listened to. Along with other behaviours, this led the employee to develop clinical depression.
  • In (O’Brien v Renton Chainsaws & Mowers Ltd), stealing an employee’s sales, putting him down, and physically pushing him, were held to constitute bullying behaviour.

What has not been enough to amount to bullying:

  • A manager telling an employee to shut up while pointing a finger in her face, as well as treating her in an overbearing and condescending way. This behaviour was found to fall within the normal range of workplace expectations (Brigg v New Zealand Gem Trading Company Ltd).
  • A manager allegedly using offensive words around an employee, excluding her from meetings, communicating with a disdainful attitude towards her, and unwarrantedly criticising her performance. This was also held to be within the normal range of workplace behaviour, and the employee was found to be extremely sensitive (Voisey v Age Concern Counties/Manukau Inc).
  • Critiques of an employee’s presentation, commenting on her appearance and family members, criticising her work and teasing her. This was found to be a failed and dysfunctional workplace relationship, but was not malicious, intimidating or insulting, and was not intended to cause any distress (Kneebone v Schizophrenia Fellowship).

As can been seen from the above, the case law is a mixed bag. It can be seen, however, that the attitudes of decision makers in the Employment Relations Authority and Employment Court are that a relatively high level of resilience or robustness is required from employees. The cases also show that a worker cannot be overly sensitive in their assessment of whether or not they are being bullied. A brusque manner, insensitive management style, and even rudeness have all been held to fall into an acceptable range of workplace behaviours. It can be argued that this is a higher threshold than what the guide provides. While the guide keeps a limit on its classification of this behaviour by ensuring it specifies that behaviour should be unreasonable, repeated and health endangering, it is hard to imagine an occasion where the Authority would find that behaviour such as “‘dirty looks”’ could amount to workplace bullying.

Rather than picking out these specific behaviours listed in the guide, perhaps it is more useful to focus on the assessment of reasonableness, which is mirrored in the case law. If you suspect that you are being bullied at work, ask yourself whether a reasonable person would be acting this way in these circumstances. WorkSafe’s suggestion of asking others their opinion on the situation and gauging a third-party perspective about the behaviour, can be a helpful way of confirming whether it is unreasonable. While the guide does provide good suggestions for how to deal appropriately with potential situations of conflict or bullying, it’s examples should not be treated as a comprehensive code for identifying bullying behaviour.