Around the jungle gym, behind the art room, or texting while shambling along with the school shirt not tucked in – young bullies do their thing. Whether there are more bullies now than in our parents or grandparents day I don’t know.
What I do know however, is bullying cases in the workplace are increasing as the number of Court cases show. A law professor at Victoria University reckons workplace bullying is now where racial discrimination was 20 or so years ago. Bullying at work has come out and no longer is easy to sweep under the carpet.
Let’s discuss then what one should know about this developing area of grievances.
What is workplace bullying?
Case law suggests three elements need to be in place:
- First; Bullying has to be repeated, there needs to be a pattern:
In Roberts v Japan Auto NZ Ltd a salesman’s boss made insulting comments about his wife’s race, required him to hand-write his details on blank cards in lieu of business cards that other salesmen had, and continually commented he was not needed. Although this only lasted three weeks the Court resoundingly found this bullying had made Mr Roberts resign and he was awarded $12,500 in damages plus $8,307 lost wages.
- Secondly; Carried out with the desire to gain power and exert dominance:
In Cartwright v Commissioner of Police A local rural policeman got a new Sergeant who at the outset said he was not going to put up with any of his “f__ing nonsense”, and removed his responsibilities. At a performance appraisal, he was called an “arrogant c__”. He was also told not to publish his usual articles in the local newspaper The stressed Constable sought medical advice and was diagnosed as clinically depressed. He took leave. On returning, he complained to his District Commander who purportedly asked sarcastically if complaining was also “part of the therapy”. The upshot of all this was Cartwright left the police, PERFed, and in addition was paid $25,000 for humiliation and lost wages.
- Thirdly: carried out with the intention to cause fear and distress:
In Nagai v Carlton Hotel Mr Nagai worked as a teepan chef in the Japanese restaurant. The head chef ran a strict Kitchen, and could speak harshly. The Authority concluded these exchanges were well within the scope of expected and acceptable conduct between a supervising chef and an employee in a busy kitchen. It was not bullying. One only has to think of TV’s “F Word” cooking programme with Gordon Ramsay to get a feel of the tensions in such workplaces.
Case law, of course recognises different work places have different standards. Each case, as always turns on its own facts. What goes in the construction site smoko shed, could be frightfully unacceptable in a politically correct government department. Furthermore, there is a line to be determined between what is really a personality clash with a sensitive worker and real bullying.
Some find it useful to explain workplace bullying in either vertical or horizontal terms as well.
An example of vertical bullying that comes to mind is paradoxically the worker on the boss rather than the usual boss on worker. This happened in McGowan v Nutype Accessories. McGowan the C.E.O. of the company was tormented by some staff over a leaked (later to be shown unfounded) investigation of the High Court over a former partner alleging he had pornographic images of her. The tormentors habitually passed his office making over the top rude comments and threats at him. McGowan eventually could no longer put up with this taunting and resigned. He sued his former employer who he had told about the taunts and won $12,500 compensation and 6 months loss of wages.
An example of horizontal bullying, that means workers bullying one another has been alluded to my overzealous union delegate case.
Indeed, last year was for me – the year for bullying cases.
One concerned an overzealous union delegate, who had a particular thing about safety. His fellow workers complained to the boss about his tough ways. The boss commissioned a psychologists report. This condemning and in my view naïve report (rubbished by another leading psychologist) – still led to the unionist having to exit his employment of 40 years.
Another sad case concerned a young woman who had an affair with a manager from out of town. She terminated the ensuing pregnancy, but this family man later became her direct boss and the bullying started.
A third case involved a professional workplace where the boss delighted in belittling my client, even to the extent of childishly hiding her pen.
I was bullied at school and my life made hell. It changed forever the day I stood up to the bully and biffed him one. Of course, you cannot take the law into your own hands as I did in that school playground. Don’t put up with being bullied – life’s too short and the law is on your side. Tell your boss, and if he is cavalier and unsympathetic like the District Police Commander mentioned earlier, seek help. Competent Unions, Employers Associations, employment relations specialists and lawyers know what to do.
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