What can governments do to prevent workplace bullying?
Employers are primarily responsible to prevent workplace bullying, however the government can and should lay the groundwork for addressing this issue, and supporting employers who want direction, options and tools. Without this important contribution from government, workplace bullying will continue to thrive as it always has done.
Here are three things our government can do:
1. Define workplace bullying in law
We have lived for many years with a definition provided by WORKSAFE NZ, but this has not been entered into legislation. It remains a part of a workplace guideline only.
If sexual harassment and racial harassment can be defined under the Human Rights Act and the Employment Relations Act, there is no reason why workplace bullying should not also be defined. It is a subject of considerable public concern affecting one in five workers and it does considerable damage to people and organisations.
2. Provide easy access to courts and impose penalties under the law
Many employers understand that bullying is not good for business and take all practicable steps to prevent it. Unfortunately, some employers ignore the issue and allow bullying to occur by turning a blind eye. It is not until there is the threat of financial penalties that some employers decide to do anything about workplace bullying.
To provide penalties there must be easy access to a court. Penalties should apply to the employer who fails to take reasonable steps. Penalties should also apply to individuals who have enacted and supported the bullying. These are serious misconduct issues. At present the target must go through a protracted process of mediation and hearings, before getting access to a court. This process is exhausting, and expensive meaning justice is often delayed and therefore denied. This process does not work well and often creates more suffering for the victim and the organisation as well. We need this legally based option, but it is not the only option.
3. Create a “Cease and Desist” framework for prevention
The Australian Fair Work Commission is a government organisation that allows workers to initiate an “order” to stop bullying. An official makes a prima facie assessment after the worker makes application. An official issues the order to the employer directing the employer to take reasonable steps to prevent bullying between the people concerned. It is now up to the employer to take all practicable steps. This should involve bringing attention to how people behave and setting expectations about what is reasonable versus non-reasonable behaviour. It should also involve bringing a spotlight to the relationship, how it is managed and how immediate reporting systems occur.
This is a prevention framework not an adversarial framework. Bullying does not have to be proven before anything is done. If bullying then occurs, the case may be referred to a court-based system. However, the incentive is on everyone to wake up, learn something and modify behaviour where it is needed. Education, transparency and accountability.
There is nothing like this in New Zealand to support employers and employees. Instead, we rely on the adversarial model of complaining and defending, lawyering up and fighting it out. This makes matters worse for everyone.
Interestingly, we do have a “prevention-focus” when it comes to family violence though. In New Zealand a person can gain a Protection Order by applying to the Family Court. A judge decides on the reasonableness of the case and applies an order to prevent violence.
The same thing can happen in the workplace. Family violence and workplace bullying share similar dynamics and this intervention places the responsibility on the employer to take action with the support of the governmental body.
Read more about the Fair Work Commission in my book, “Preventing Workplace Bullying and Harassment” published by CCH NZ Ltd. https://books.wolterskluwer.co.nz/items/10099361-0001S
Without the government doing their part, workplace bullying will continue to be embedded in our employment sector. We need a whole system approach and government certainly has a role.
Hadyn Olsen
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