Understanding Workplace Bullying in New Zealand Law
Workplace bullying can significantly impact a worker's well-being and the overall work environment. New Zealand law addresses workplace bullying primarily through health and safety legislation and employment relations principles.
What is Workplace Bullying?
While the Health and Safety at Work Act 2015 does not explicitly define 'workplace bullying', it is widely understood and applied in New Zealand, in alignment with health and safety principles, as repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety [Source: Health and Safety at Work Act 2015, s 36 (referring to the duty to ensure health and safety, which includes psychological health)].
Repeated behaviour means the behaviour happens more than once. Unreasonable behaviour refers to actions that a reasonable person would consider demeaning, intimidating, or victimising, and includes verbal, physical, social, or psychological abuse. This behaviour is judged objectively, meaning it is assessed based on what a hypothetical reasonable person would consider appropriate in the circumstances.
It is important to distinguish bullying from legitimate management action. Reasonable management actions, such as constructive feedback, performance management, or disciplinary processes carried out fairly and appropriately, are generally not considered bullying [Source: Health and Safety at Work Act 2015, s 36].
Legal Framework
Health and Safety at Work Act 2015 (HSWA)
The HSWA is the primary legislation for workplace health and safety in New Zealand. It places significant obligations on Persons Conducting a Business or Undertaking (PCBUs) – a broad term encompassing employers and other entities with control over a workplace.
- Primary Duty of Care: A PCBU has a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers, and other persons affected by the work [Source: Health and Safety at Work Act 2015, s 36]. This duty extends to managing psychosocial risks, including workplace bullying, which can lead to psychological harm.
- Worker Duties: Workers also have duties under the HSWA. They must take reasonable care of their own health and safety, and take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons [Source: Health and Safety at Work Act 2015, s 45]. This includes not engaging in bullying behaviour.
Employment Relations Act 2000 (ERA)
The ERA governs employment relationships in New Zealand, focusing on good faith and the resolution of employment relationship problems.
- Duty of Good Faith: Employers and employees must deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. Bullying behaviour can be a breach of this duty, as good faith requires active and constructive engagement in employment relationships.
- Personal Grievances: Workers who believe they have been subjected to workplace bullying that results in an unjustified disadvantage or dismissal may be able to raise a personal grievance [Source: Employment Relations Act 2000, s 103]. An unjustified disadvantage refers to an action by an employer that negatively affects a worker's employment but does not result in dismissal [Source: Employment Relations Act 2000, s 103(1)(a)].
Employer Obligations
Under the HSWA and the principles of good faith, PCBUs (employers) have several key obligations regarding workplace bullying:
- To identify and manage the risks of bullying in the workplace [Source: Health and Safety at Work Act 2015, s 36].
- To develop and implement clear policies and procedures for preventing and responding to bullying complaints.
- To provide information and training to workers on what constitutes bullying and how to report it.
- To investigate all complaints of bullying promptly, thoroughly, and impartially [Source: Employment Relations Act 2000, s 4].
- To take appropriate and effective action to address bullying behaviour and prevent its recurrence [Source: Health and Safety at Work Act 2015, s 36].
Worker Rights and Responsibilities
Workers have the right to a safe workplace free from bullying [Source: Health and Safety at Work Act 2015, s 36]. If a worker experiences or witnesses bullying, they have the right to:
- Report the behaviour internally, following workplace policies and procedures.
- If internal processes are insufficient or ignored, to raise their concerns with WorkSafe New Zealand, the government agency responsible for enforcing health and safety legislation.
- Raise a personal grievance under the ERA if the bullying constitutes an unjustified disadvantage or dismissal [Source: Employment Relations Act 2000, s 103].
Workers also have a responsibility to:
- Comply with any reasonable instruction given by the PCBU [Source: Health and Safety at Work Act 2015, s 46].
- Report bullying behaviour they experience or witness [Source: Health and Safety at Work Act 2015, s 45].
- Cooperate with any investigations into bullying complaints [Source: Employment Relations Act 2000, s 4].
When to Seek Independent Legal Advice
For specific guidance on individual circumstances relating to workplace bullying, including understanding personal grievance processes or health and safety obligations, it is recommended that individuals contact WorkSafe New Zealand for health and safety inquiries, Employment New Zealand for employment rights and obligations, or a legal professional. Individuals can also seek free advice from Community Law Centres.