A New Workplace Problem : Bullying Australians

By Andrew Scott-Howman, Partner | Wednesday 6 February 2002

It has been a very strange summer for my television. Time and time again it has purported to inform me that our cricket team has dismissed the Australian one day side for a pathetically paltry total. Scoreboards of fantastical proportions greet me with news of ridiculous thrashings at the hands of the apparently superhuman Black Caps.

This is the same television that a few short months ago caused such pain and despair in my household with its distressing broadcasts of Super 12 and Tri-Nations rugby. Surely there is some technical difficulty making my television mysfunction?

On the serious side of things, if you are anything like me you have been regularly filling the inboxes of all of your Australian friends and colleagues with emails proclaiming the greatness of our most recent sporting prowess (we had better make the most of it while we can). You should be aware, however, that if your emails are directed at recipients in Victoria (and tend to rub our successes in a little too much for the readers' liking) you might soon be accused of breaching a local occupational health and safety code of conduct.

Legislators in Victoria have recently circulated a draft code of practice intended to address the problems posed by a major problem in Australian workplaces - bullying. The code, which will be introduced in conjunction with Victoria's health and safety legislation, is intended to address repeated incidents of "unreasonable behaviour" - which include victimisation, humiliation or undermining behaviour.

In short, the code recognises that a number of Australian workplaces tacitly condone unacceptable behaviour such as initiation ceremonies for new employees, or unofficial hierarchies (where, for example, senior employees might assert social power to ensure that new employees are disadvantaged by undesirable rosters or particularly unpleasant work tasks). Interestingly, this behaviour is perceived as a workplace health and safety issue because of its potential to cause psychological damage to employees.

New Zealand's health and safety legislation is drafted in broad terms, placing a wide obligation upon employers to eliminate hazards from the workplace. Like its Victorian counterpart, the New Zealand legislation allows codes of practice to be drafted to address specific recognisable hazards. The subject of bullying has not been specifically addressed in the New Zealand context by way of a code of practice.

The subject of bullying is not, however, foreign to our own employment law. Our employment and human rights legislation recognises that employees have a right to be protected from harassment and discrimination in their workplace. Allegations of bullying have given rise to personal grievance actions in this country alleging unjustified disadvantage, and in some cases, constructive dismissal.

Despite the fact that bullying is not specifically addressed in a code of practice, it is possible that an allegation of bullying in a New Zealand workplace could be investigated as a breach of the duties owed by an employer under our own health and safety legislation. In that context the recent developments in Victoria should be of interest to New Zealand employers.

One of the difficulties faced by employers is the fact that bullying is, by its nature, insidious. Victims may feel unable to bring an incident of bullying to the attention of their employer. The Victorian code suggests that employers should be educated as to the "warning signs" of bullying and that they should regularly consult with employees to prevent bullying.

The code suggests a method by which employers can perform a risk assessment of their workplace and provides examples of personal protection control measures. It suggests that employers should regularly consult with their employees to make sure that the outward appearance of a harmonious workplace does not disguise any unfairness or improper treatment.

New Zealand employers who are interested to consider the draft Victorian code of practice (and the measures suggested to confront bullying) may find it at the website of the Victorian WorkCover Authority (www.workcover.vic.gov.au).

In the meantime, (and at least before the beginning of the next rugby season) perhaps we New Zealanders should get in as much "bullying" (of a sporting nature) as possible at the hands of our poor Australian cousins!