Bullying and Harassment in the Workplace – A Quick Guide for N.Z Employers
Bullying and harassment remains a highly contentious and complex area of risk for employers to manage. It represents an area of employment relations that is not well-understood by employers, who frequently fail to manage their associated legal obligations, exposing them to adverse outcomes and risk.
When poorly managed, issues involving bullying and harassment frequently result in personal grievance claims, significant financial awards and reputational harm.
From a legal perspective, bullying and harassment issues sit at the intersection of:
The Employment Relations Act 2000 (‘the Act’).
The legal duty of good faith.
Employer obligations to provide a safe and healthy workplace, including protecting employees from related risk.
Crucially, liability often arises because the employer failed to respond appropriately once concerns were raised or failed to respond at all. The law imposes positive obligations on employers to actively manage bullying and harassment in the workplace.
What is Workplace Bullying and Harassment?
While not defined prescriptively in legislation (with the exceptions sexual and racial harassment), the Employment Relations Authority (‘the Authority’) and the Employment Court (‘the Court’) regularly rely on the WorkSafe definition of bullying:
‘Repeated, unreasonable behaviour directed at a worker, or group of workers that can lead to physical or psychological harm’.
Bullying may include:
Repeated unreasonable criticism or verbal abuse.
Public humiliation, ridicule or belittling behaviour.
Isolating, ignoring, excluding, silent treatment.
Intimidation, threats or aggressive conduct.
Persistent undermining of work or unreasonable performance demands.
Deliberate exclusion or isolation from normal workplace activities.
Bullying is not one-off or occasional instances of forgetfulness, or tactlessness, setting high performance standards, constructive feedback and legitimate review, reasonable management instructions, personality that clauses that do not escalate in a materially adverse way, etc.
Harassment may include:
Verbal abuse, intimidation or threats.
Humiliation or ridicule.
Sexual or discriminatory conduct.
Persistent undermining or exclusion.
A single incident can still amount to harassment if sufficiently serious.
Common Employer Mistakes Creating Legal Exposure
Employers often fall into difficulty by:
Minimising complaints as “personality clashes”.
Failing to act because the alleged bully is a senior manager or director.
Delaying action while hoping issues will settle down.
Conducting informal, undocumented investigations.
Failing to protect employees from ongoing harm in the workplace.
Not addressing foreseeable health and wellbeing risks.
Once an employer is on notice of potential bullying or harassment, inaction itself may provide an employee with grounds to pursue a successful personal grievance claim.
Practical Risk Example
An employee raises repeated concerns about being verbally abused by their manager. The employer:
Acknowledges the complaint.
Encourages the employee to “work it out” directly.
Takes no formal steps, or measures to protect the employee’s safety and wellbeing.
Allows the behaviour to continue.
The employee later resigns on medical advice. The employer’s failure to intervene can support a constructive dismissal claim.
Case Law Snapshot – What Recent Decisions Tell Employers?
Parker v Magnum Hire Limited & Field [2024] NZERA 85
The Authority found that Magnum Hire Limited (a heavy equipment hire company in Westgate, Auckland) failed to protect its long-serving manager, Mr Parker, from repeated bullying and psychologically abusive behaviour by the company’s director and failed to provide a safe workplace.
Mr Parker later became sick and, after unsuccessful attempts to resolve the problem through internal processes, resigned. He raised multiple personal grievance claims, including:
Unjustified disadvantage due to failure to protect him from foreseeable harmful behaviour.
Unjustified suspension.
Constructive dismissal.
The Authority found that Magnum Hire and its director breached their duty to provide a safe workplace and that Mr Parker’s resignation was a reasonably foreseeable result of the bullying and mistreatment. Mr Parker’s claim for constructive dismissal was successful. The Authority awarded substantial remedies and penalties of over $140,000 (excluding the employer’s own legal costs).
Employer Takeaway: This case highlights the significant risk employer can expose themselves to by failing to address bullying and harassment concerns in the workplace, including a director’s unjustified treatment and corresponding actions towards an employee for which the employer was later found to be liable. Employers must take active steps to create, implement and enforce anti-bullying and harassment policies and processes, train managers, and act decisively when concerns are raised.
Employer Obligations Once Concerns Are Raised
Once an employer becomes aware of bullying or harassment, it must:
Acknowledge the concern promptly.
Assess immediate risk to health and safety.
Consider interim protective measures such as reporting lines, working arrangements, EAP programmes and counselling services, leave arrangements, whether a suspension process may be appropriate during an investigation, etc.
Investigate fairly and impartially, using a formal process.
Provide all parties with:
Clear allegations.
Notify of legal rights, including observing procedural fairness considerations where applicable.
Relevant information.
A genuine opportunity to respond.
Reach a reasoned decision.
Take appropriate corrective action or develop an action plan to address the concerns in a meaningful way.
Failure at any stage can expose the employer to liability. An employer should always carefully document any steps taken to address concerns relating to bullying and harassment in the workplace, so evidence can be produced should it be required to defend legal claims.
Key Risk Management Steps for Employers
To reduce exposure:
Train managers on recognising and responding to bullying behaviours.
Act early – delay worsens risk.
Document all steps taken.
Separate investigation and decision-making roles where possible in the event a formal employment investigation is required.
Seek professional assistance and support for high-risk, contentious or senior-level complaints.
Compliance Warning
Bullying and harassment issues represent high-risk legal exposure for employers and are a cause of successful personal grievance claims in New Zealand. Once an employer is aware (or ought reasonably to be aware) of bullying or harassment concerns in the workplace, it has a positive legal obligation to act. Delay, minimisation, or informal handling will rarely be defensible in the event of a protracted legal dispute.
The Authority consistently emphasises the importance of employer’s implementing fair and thorough employment processes. Employers who fail to promptly assess risk, protect affected employees, investigate complaints properly, or take effective corrective action risk findings that they have breached their legal duties and failed to provide a safe working environment.
Bottom line: Bullying and harassment cannot be managed passively or ignored. Employers must respond early, follow fair and transparent employment processes, and address behaviour decisively, including where the conduct involves senior staff, or between colleagues. The financial, legal and reputational consequences of getting this wrong are often severe.
This article is provided for general information only and does not replace professional advice. Employers should seek advice specific to their circumstances from Employer Pro if unsure about managing bullying and harassment issues in the workplace. Employer Pro has a range of employer focused resources and services available through our competitive Employer Protection Packages.
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