Workplace bullying and harassment is against the law.
The Health and Safety in Employment Act 1992 requires that employers take all practical steps to ensure the safety of employees while at work. Workplace stress has been accepted by the Courts as a workplace hazard which the employer is responsible for.12 In 2003, the Act amended the definition of “hazard” so that it now provides as follows:
S 2 hazard —
(a) means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause of harm; and
(b) includes:
(i) a situation where a person’s behaviour may be an actual or potential cause or source of harm to the person or another person; and
(ii) without limitation, a situation described in subparagraph (i) resulting from physical or mental fatigue, drugs, alcohol, traumatic shock, or other temporary condition that affects a person’s behaviour.
The amendment means that the employer may now be liable for workplace bullying. This may include general bullying such as assault and abusive language, and management bullying.13
Section 21 of the Human Rights Act 1993 sets out certain prohibited grounds of discrimination. These are:
(a) Sex, which includes pregnancy and childbirth
(b) Marital status
(c) Religious or ethical belief
(d) Colour
(e) Race
(f) Ethnic or national origins
(g) Disability (including physical or mental)
(h) Age
(i) Political opinion,
(j) Employment status,
(k) Family status,
(l) Sexual orientation.
Under that Act it is an offence in relation to employment —
(a) To refuse or omit to employ the applicant on work of that description which is available; or
(b) To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or
(c) To terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or
(d) To retire the employee, or to require or cause the employee to retire or resign;
— by reason of any of the prohibited grounds of discrimination.14 Sexual harassment is expressly prohibited under section 62 of that Act.
Finally section 103 of the Employment Relations Act 2000 provides the employee with the ability to take a personal grievance action against the employer in relation to bullying or harassment where it can be shown that the
(a) employee’s employment, or 1 or more conditions of the employee’s employment, was affected to the employee’s disadvantage by some unjustifiable action by the employer; or
(b) employee has been discriminated against in the employee’s employment; or
(c) employee has been sexually harassed in the employee’s employment; or
(d) employee has been racially harassed in the employee’s employment.
References
12 Gilbert v Attorney General in respect of the Chief Executive of the Department of Corrections [2000] 1 ERNZ 332 (EC); Attorney General v Gilbert [2002] 1 ERNZ 31 (CA).
13 Brookers Employment Law, Health and Safety in Employment Act 1992 2.20.03(2)
14 Section 22 Human Rights Act 1993.
