The Smiling Assassin - how to deal with workplace bullies

Worksafe has recently updated its Bullying Prevention Toolbox which contains guides, templates and useful information as to what might be bullying behaviour in the workplace, and how to develop a useful response to it.

There is a growing awareness across all parts of society of the problem of bullying, and the serious impact it can have on people.  On the flipside, it sometimes feels as if people cry “bully” at the first sign of something not going their way. 

Notwithstanding that, bullying is a matter which should be taken seriously and dealt with appropriately when raised in the workplace.  This is because bullying is a “risk” under the Health and Safety at Work Act, and where it causes harm, an employer can be liable for failing to take proper steps to prevent it. 

What constitutes bullying is not defined by statute.  However, the generally accepted definition is that used by Worksafe that is “repeated and unreasonable behaviour directed towards a worker of a group of workers that can lead to physical or psychological harm”.  Bullying can happen down the operational chain (eg by a manager to a subordinate) or up it (by a junior employee to a senior employee) or across it (ie between two employees in the same team).  A person can be bullied by someone external to the organisation – say a regular client.  It does not need to involve a power imbalance, although it frequently does. 

When a bulling allegation is made, the first thing to do is determine whether there is bullying, or whether the problem is something else.  The first consideration is that the behaviour must be repeated.  So, while a nasty comment or a shouting match between employees may be inappropriate, even harmful, it is not bullying.  Secondly, it must be unreasonable.  So, giving directions, or critiquing work performance (provided the direction and critique are lawful and justifiable) is not bullying.  Frequently, an underperforming employee complains they have been bullied when in fact they have simply been managed, albeit in a way that has criticised some aspect of their performance. 

A good way of identifying the difference is whether you can identify a course of conduct designed to undermine a person.  Things like withholding information from an employee, treating the employee differently to other employees, or setting impossible expectations are probably bullying. 

These matters can be difficult to determine within the pressure-cooker of a workplace where there are personality differences, and especially where the actions are not overt (snarky communications or social isolation is much harder to identify than open teasing or physical mistreatment).  Most people accused of bullying will deny being bullies, and most people making accusations of bullying will feel emotional or suffer further upset when their account is challenged, or when faced with the alleged aggressor’s strident defence. 

It can be useful in those circumstances to appoint an independent person to investigate the allegation.  That person may be a lawyer, or an HR consultant, and they have the advantage of being separate from the personalities and the day-to-day function of the workplace, which makes them better able to focus on the behaviour and whether it is reasonable.  They may be able to speak to witnesses of the alleged behaviour to understand how best to interpret actions and people’s responses. 

The mistake made by many employers is to be reluctant to engage in allegations of bulling, for fear that the employee is ‘angling’ towards personal grievance claims.  A better approach is to consider the allegation with an open mind.  If there is bullying, then the employer can avoid the risk of such claims by taking appropriate steps to stop it.  From an employment law perspective (although not the same from a Health and Safety perspective), there is no liability for bullying until the employer is made aware of it, and fails to act. 

There is no doubt that bullying is harmful and destructive to workplaces.  You should have policies in place to ensure staff work in an emotionally safe environment, and to deal with situations where bullying arises.  If you would like help developing your practice in this area, you believe you are being bullied, or you have been accused of bullying, please do not hesitate to call.

me to discuss.