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Bullying; let's focus on the conduct, not the label!



I've been bullied at work. Why aren't you focusing on my bullying claim?

Without a doubt, there is a bullying epidemic in New Zealand's workplaces. Employees are being treated unfairly in almost every industry; no one is immune. But, when advocating for employees, I actively avoid using the "B" word where possible.


Why? It's my strategy. Continue reading, and you'll find more!


Legal Definition


The first reason I try to avoid using the "B" word is simply because, I don't have to. If an employee feels bullied in the workplace, they can raise an employment relationship problem by either meeting with their employer, writing to their employer, making a formal complaint or raising a personal grievance. In either event, the employee will likely have grounds so long as they can show that their employer has treated them unfairly and unreasonably (read more about "unjustified disadvantages" here).


Bullying is unfair and unreasonable behaviour; but the threshold to claim that bullying has occurred is much higher than this. The most commonly adopted definition of bullying was created by WorkSafe New Zealand:

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers.

This definition may seem straight forward, but from my research on recent case law, the Employment Relations Authority and Employment Court are reluctant to label conduct as "bullying." But, in many instances the employee will still be successful as the individual events can be considered unfair and unreasonable; meeting the requisite tests for an unjustified disadvantage.


What does this mean in practice? If I raise a bullying allegation, it will be easier for the other side to argue that bullying did not occur. They will point to relevant case law and exclaim that there is a high threshold. Unfortunately, the word "bullying" has been devalued in the legal sector, and when used may draw attention away from the merit of the case. In these situations, it can be difficult to reach a resolution.


However, if the unjustified actions are listed separately, it will be more difficult for an employer to refute them. Irrespective of whether we use the "B" word, the employee has been treated unfairly and unreasonably in the workplace, and has therefore been unjustifiably disadvantaged. There is merit in this, and will enable productive negotiations.


The impact of a bullying allegation


The second reason I try to avoid the "B" word is because it's an emotive word. It's personal and has the potential to hurt others. It's a word that, when used, can negatively impact an employment relationship.


Firstly, let's consider an ongoing employment matter. If an employee feels bullied, the aim should always be to resolve the situation; not to seek revenge. A fair and reasonable employer would investigate the employee's concerns, and if they find that the conduct amounts to misconduct or serious misconduct they may commence a disciplinary process. If the conduct falls short of misconduct, the employer will still be required to address the employment relationship problems between the parties.


Irrespective of the employer's findings, the next step is for the parties to resolve the employment relationship problem. There may be an easy solution; one party may be able to move desks, teams or to a different location. However, this isn't always possible. In these situations, the affected employees will be required to meet to attempt their resolve the issues between themselves (often with the assistance of an independent mediator).


In my experience, a bullying allegation can hinder this process. People feel personally attacked when they have been labelled a "bully" and often find it difficult to constructively address the problems present in the employment relationship. They focus on the label, not the conduct, and often become defensive about the situation, in an effort to restore their reputation. However, if we take away the "B" word, we are still able to discuss the same behaviours and actions that has resulted in the employee feeling bullied. In these situations, the parties discuss the conduct that occurred, rather than the label attached to it. The accused employee is more likely to self-reflect and provide an apology. This is the constructive way forward for both parties, and will lead to a healthier employment relationship. If the claims are raised post-employment, the goal is the same; resolution. However, when a bullying allegation is made, emotions flare up, and this can hinder negotiations between the parties. Out of spite and principle, an employer may vigorously defend the claims; instead of constructively working to resolve the issue.


Conclusion


Of course, there will never be one rule. There will be cases where it is appropriate to attach the "bullying" label. However, my job as an employment law advocate is to pull fact from emotion. To consider whether the conduct is "unfair and unreasonable." My job is not to unnecessarily label conduct. I want to put you in the best possible legal position to advance your claims; sometimes I can't do that by using the "B" word. Let me know what you think in the comments below.


Ashleigh Fechney

LLM(hons), BA



027 555 999 5

Ashleigh.the.Advocate@gmail.com

www.ashleightheadvocate.co.nz


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