Handling the workplace bully

The English language is a funny thing.

For example, for a good part of the last century, the word "bully" enjoyed some currency as an expression of congratulation for achievement of the highest goals (as in the expression "bully for you").

In current parlance, of course, the word usually has a completely different meaning - being a description of a person who uses forceful or intimidating behaviour. We probably all have unpleasant memories of somebody of this disposition from the school playground.

But, if recent case law is anything to go by, it seems that this description is also enjoying some frequent use in our employment jurisdiction. In fact, you might say that "workplace bullying" is something of the flavour of the month in New Zealand personal grievances.

The prospect of bullying behaviour in the workplace is nothing new - nor is the law's response to it: intimidating or forceful behaviour is never, and has never been, acceptable in the New Zealand workplace. An employee who behaves in this way will, almost inevitably, be said to have committed misconduct in the course of their employment.

So while the problem is nothing new, the frequency of its prominence in recent cases probably suggests an increased willingness to address it.

But that prospect invites a number of potential problems for an employer. Helpfully, a recent case, Williams v The Warehouse Limited (Unreported, Employment Relations Authority, Auckland, 23 December 2005), gives some guidance as to the way an employer might approach those matters.

Ms Williams was employed by The Warehouse - and appears to have been the supervisor of a number of co-workers. It seems that several of her colleagues took issue with her management style.

One of Williams' colleagues resigned, confiding with a Human Resources Manager that her reason for doing so was Williams' ongoing bullying behaviour. She said that she was reluctant to make a formal complaint about Williams out of fear that such confrontation might make matters worse.

At about the same time a number of other employees approached a Quality Assurance Manager, effectively making a collective complaint about what they perceived to be Williams' bullying behaviour. Having received these two complaints, the employer was able to proceed to a formal investigation.

This aspect of the case illustrates one of the inherent difficulties with bullying claims. Put simply, employees who are bullied may have a natural reluctance to take on the alleged transgressor - out of a fear that doing so might make matters worse for them. Yet one of the fundamental parts of our employment law is a requirement that any complaint about something as serious as bullying must be made by an accuser who is willing to have his or her identity revealed to the alleged perpetrator. As this case illustrates, it is often only when a person has resigned from an organisation - or where employees feel that they can take safety in numbers with a collective complaint - that formal action is taken.

Put another way, the nature of bullying is such that quite often complaints just aren't made.

A second problem confronted the employer in Williams' case. At the time when each of the two complaints were made, Williams was away from the workplace. Consistent with its obligation to bring the complaints to her attention in a timely fashion, the employer planned to meet with her upon her return to work.

But what would that mean for the complainants? They had a real fear that she might react immediately should she remain in the workplace.

The logical answer, of course, would be to require Williams to go home immediately after receiving the complaints. But an employer may only suspend an employee in this way if the employment agreement allows. In Williams' case the employer had no such right of suspension.

But, weighing everything up, The Warehouse decided to suspend her anyway. This was later a subject of specific challenge by Williams. She said that the employer had been in breach of its employment contract - and that she should be entitled to some remedy as a result.

The Employment Relations Authority disagreed. It said that, considering all the circumstances of the case, suspension was justified in the circumstances.

Ultimately, The Warehouse upheld the complaints that were made about Williams. In short, it concluded that she had engaged in intimidating and bullying behaviour. It decided to dismiss her.

Williams challenged this decision by making a claim to the Employment Relations Authority - making a number of different arguments about the correctness of the employer's conclusion. Those challenged failed - and the Authority found that The Warehouse's decision to dismiss for bullying was reasonable.

An allegation of bullying does, by its nature, give rise to a number of difficult issues for an employer. This case helpfully gives some indication about what those problems might be - and how a reasonable employer might respond to them.