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Harassment and bullying in the workplace


images (2)Workplace harassment and bullying is likely to affect staff morale, creativity and productivity, and create an unhealthy workplace culture. It can be subtle or overt, sporadic or sustained.

Harassment can be defined as any unwelcome comment, conduct or gesture that is insulting, intimidating, humiliating, malicious, degrading or offensive. It might be repeated or an isolated incident but it is so significant that it adversely affects someone’s performance, contribution or work environment. It can include physical, degrading or threatening behaviour, abuse of power, isolation, discrimination, sexual and/or racial harassment. Harassment is behaviour that is unwanted by the recipient even if the recipient does not tell the harasser that the behaviour is unwanted.

Bullying is ongoing unreasonable behaviour which is often intended to humiliate or undermine the recipient but is not specifically unlawful.

Legislation and liability

Under New Zealand law, employers are obliged to create a safe and secure working environment for their employees, and take all reasonable practicable steps to manage hazards and avoid exposing employees to unnecessary risk of physical injury or psychological harm.

The Human Rights Act, Section 62, states that it is unlawful for any person to be sexually harassed, either through a request for some sort of sexual activity with an implied or overt threat of detrimental treatment, or promise of preferential treatment; or through sexual behaviour that is unwelcome or offensive to the recipient, and is either repeated or so significant that the person experiences some form of detriment in their employment.

Section 63 says that it is also unlawful for anyone to use any behaviour that expresses hostility against, or brings into contempt or ridicules someone on the basis of their race, colour, national or ethnic origins, in such a way that is offensive to the person, and is either repeated or so significant that it has a detrimental effect on their employment.

Section 66 states that it is unlawful to victimise a person for making a complaint of discrimination under this Act, or for making a disclosure under the Protected Disclosures Act 2000.

An external police investigation cannot take the place of an internal disciplinary inquiry.

According to the Employment Relations Act 2000, (Section 108) an employee can take a personal grievance case against their employer if they directly or indirectly subject the employee to behaviour that is unwelcome (whether or not that is conveyed to the employer or their representative) and by its nature or through repetition has a detrimental effect on the employee’s employment, job performance or job satisfaction. An employee can also take a personal grievance case if they are sexually or racially harassed by another employee, customer or client, and the employer has had the chance to investigate a complaint, but has not taken any practicable steps to prevent the behaviour recurring (Sections 117 and 118). Organisations will be held liable if the harassment takes place during work hours, on work-related activities or at work-related social events.

Employees can take a personal grievance within 90 days of the alleged act. However, if the nature of the act means the Human Rights Act has been contravened, the employee can bring a case against the employer for up to 12 months after it occurs.

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