Cantabrian Jane Barnes had been a kindergarten teacher in her local community for 23 years and loved her role. Passionate about making a difference to children’s lives, she would regularly go above and beyond, taking planning work home and being creative in organising activities.
She says she’ll never forget the look of amazement on the children’s faces when members of Christchurch Symphony Orchestra visited with their instruments after she’d secured the funding.
Her efforts had been valued. She had positive staff appraisals throughout her employment at the centre, and the families felt very much like whānau.
Her life changed, however, after a new head teacher was appointed. Throughout the following months, Barnes was ridiculed and undermined professionally.
“My self-esteem was plummeting, I got more and more tense, and I felt like I was walking not on eggshells but on broken glass. She would spontaneously change what she had asked me to plan. I wasn’t allowed to say anything because whenever I did it was wrong, and she was gaslighting me so I began to doubt my own abilities.
“I got really low, lost my appetite, felt isolated and wasn’t sleeping well. It felt like an abusive relationship, to the point that I’d be closing up at the end of the session on the verge of tears. When I knew the children were picking up on it I decided it was safer for them to take myself out of the situation.”
Barnes’ doctor signed her off on sick leave. But after seeking advice from a manager at the kindergarten association, she realised what she’d been experiencing was workplace bullying.
Dissatisfied with how her employer had handled the situation, and in an attempt to help others avoid the same trauma, she decided to pursue the matter legally. A final resolution was reached nearly six years after she’d first been signed off sick.
Following hearings at the Employment Relations Authority and Employment Court, Canterbury Westland Kindergarten Association was ordered to pay $30,000 compensation, one year’s superannuation contributions, and two years of disregarded sick leave. The findings stated there was evidence of a link between the diagnosis Barnes had received of post-traumatic stress disorder (PTSD), the bullying allegations, and subsequent unjustified actions of her employer in dealing with the complaint.
Economic cost
As well as serious risks for individuals, bullying in the workplace has significant consequences for businesses and the economy. “Counting the Cost”, a report released in May by KPMG in collaboration with the Human Rights Commission, put the cost of bullying and harassment to Aotearoa’s economy for the year to June 2022 at $1.34 billion.
Turnover and replacement costs accounted for $566 million of this and absenteeism for $178m. Presenteeism – where somebody is physically at work but unable to perform at their best due to factors such as stress, insecurity and ill health – amounted to $369m of the total. The report estimated for the following 12-month period the cost of bullying and harrassment would reach $1.5b.
Jarrod Haar, a professor at Massey University’s School of Management, collects data on workplaces twice-yearly. He says 57% of employees surveyed in April reported having experienced at least two types of bullying on a weekly or daily basis. International research suggests New Zealand’s levels are among the worst in the world, he says.
Haar was startled to see such a sharp rise in the latest figures compared with the previous survey, which found 21% had experienced bullying.
People aren’t just making this stuff up - it’s serious and it’s miserable.
“These types of behaviours include being shouted at or being the target of spontaneous anger, someone withholding information that affects performance, spreading gossip, being ignored or excluded, persistent criticism and facing hostile reactions,” he says.
Haar attributes some of the rapid increase to pressures in the economy and job loss fears. The fallout from Covid and complexities of the workplace – with the rise in remote working – have added to this, since bullies are less likely to operate in a face-to-face manner, he says.
“It’s not an excuse to tolerate bullying just because people are under the pump. Managers need to be saying, ‘Enough is enough.’”
He suggests making worker wellbeing a performance indicator, requiring a demonstration of reductions in workplace bullying. “The weird thing is, we had significant national attention on workplace bullying around 2012-14, and I think a lot of people believed it had petered out. Things were pretty bad then, but it’s at least as bad now – in fact it’s probably worse.
“People aren’t just making this stuff up – it’s serious and it’s miserable.”
Legal duties
Under the Health and Safety at Work Act 2015, businesses have a primary duty to do what is reasonably practicable to ensure the health and safety of workers. This covers all types of working relationships, not just employer/employee.
WorkSafe New Zealand, as the regulator of the act, provides guidance to support businesses with risk assessment and management practices to minimise the likelihood of bullying. It details bullying as “repeated and unreasonable behaviour directed towards a worker or a group of workers” and that “it can lead to physical or psychological harm”.
“Organisations’ legal duty to ensure the health and safety of workers includes psychological health as well as physical health,” says clinical psychologist Dougal Sutherland. His Wellington practice, Umbrella Wellbeing, focuses on employee wellbeing and mental health.
Classic indicators of a bullying culture can include high turnover rates, absenteeism and presenteeism. “The trouble is, I don’t think people take this matter seriously. There’s a general perception that bullying only happens in the school playground but it’s much more widespread than that.”
Sutherland says the consequences for those on the receiving end can include feeling anxious, isolated and depressed. People can also experience sleep disturbance, loss of appetite, start to question their own abilities, and in very severe cases, it can lead to suicide.
‘Way behind’ Australia
In Victoria, Brodie’s Law was introduced in 2011 in response to one very severe case of workplace bullying, in which the person attacked took her own life.
“Brodie’s Law makes serious bullying an offence punishable by up to 10 years’ imprisonment,” says Sutherland. “There’s no equivalent in New Zealand. In general, our country’s laws around protecting employees’ mental safety at work – with bullying as a component of that – are way behind those in Australia.”
Creating an environment where people feel comfortable raising their hand without fear when they notice something going on is important.
A one-off, isolated occurrence of a behaviour doesn’t constitute bullying, he says, but “it’s reasonable to need to be able to give feedback or constructive criticism to an employee, and for a manager to be able to make decisions.”
Umbrella’s research shows those experiencing bullying are four times more likely to quit their job. “Nobody wants to think of themselves as a bully but when we’re in high-stress environments, many of us will engage inadvertently in uncivil or even bullying behaviour.”
Incivility includes things like sarcasm, interrupting, not listening, dirty looks, inappropriate jokes and excluding people.
Power play
For Megan (not her real name), bullying became extreme after she was transferred to a new office as an adviser to a senior manager. She previously enjoyed her work and had received exemplary performance reviews. But things changed with her transfer. Her new boss would “ridicule me, ghost me, humiliate and belittle me in front of colleagues”, says Megan, who was 40 at the time. “She seemed to enjoy the audience and fully took advantage of the power relationship she had established.
“I didn’t sleep well, became very fearful and I really couldn’t do my job – I would have to triple-check everything because I came to doubt myself. There was this whole element of suspicion all the time. There was no room for mistakes. I remember going in one day and just bawling because I’d made an error and didn’t know what to do. At any opportunity, she would just rip me apart.”
After several months, Megan plucked up the courage to tell her the behaviour was unacceptable. “After that, she did change her behaviour a little, but fortunately soon afterwards she was moved sideways. I was nervous even after she’d left but was so grateful to be working again in a more normal environment. If I’m ever treated like that again, I will not stand for it.”
I’ve seen more than one employee hospitalised with symptoms presenting the same as a heart attack
Employment lawyer Andrea Twaddle strongly advocates having a robust national conversation on workplace bullying as a step towards addressing the growing issue.
“It’s so important we talk about this. Schools are teaching students what bullying looks like and what’s just being mean or what’s being thoughtless. If we’re teaching kids how to manage that, and appropriate strategies for having hard conversations, we should be able to do the same for adults.”
Twaddle, a workplace investigator and director at Hamilton-based DTI Lawyers, emphasises there is a lack of shared understanding around what constitutes bullying, and more clarity is needed.
“I think many workplaces don’t equip their people to know what’s above and below the line,” she says.
There’s also a lack of legislative clarity. “This leaves us with people forming their own views about what is unreasonable and what is bullying, based on individual perceptions, which can become understandably emotive.”
She has witnessed the damaging impact bullying claims have on those involved. “I’ve seen more than one employee hospitalised as a consequence of stress levels causing symptoms that presented the same as a heart attack. It’s imperative and urgent we improve how we do things.”
Most bullying and harassment claims are brought under the Employment Relations Act 2000, which Twaddle points out is 24 years old. “When it was introduced, it came with the expectation that people could fairly pursue their own concerns without needing a union, lawyer or advocate to support them. In reality, it’s very difficult to do that by yourself.
“Organisations can and should take the lead to reduce bullying by being proactive. Workplaces should put in place policies around bullying, ensure role clarity, provide constructive feedback on performance and conduct, and improve understanding about what bullying may include.
“They should also communicate clearly what to do if concerns arise so employees understand what that process may look like and how to navigate it.”
Twaddle hopes recent penalty increases imposed by the Employment Court as a result of bullying cases help highlight the severity of the issue for those not already aware.
First Union national organiser for retail food, Ross Lampert, says the law is significantly lacking in terms of the way workplace bullying is dealt with in New Zealand. “Organisations are responsible for investigating claims of bullying themselves,” he says. “That leaves most people unprotected and often having to liaise with the actual bully.
A major flaw is that Workplace NZ is under-resourced, so there is no effective external agency to respond to bullying, Lampert says. “In my experience it’s hard to bring a legal case to the Employment Relations Authority if there’s been an investigative process that’s been seen as being comprehensive, even if the outcome may have been pre-determined.”
He believes the problem is worst in owner-operated businesses. “When it’s a company investigating themselves, if they decide the complaint doesn’t go any further, WorkSafe doesn’t have an adequate process for the case to be escalated.”
Exclusion tactics
Sandra (not her real name) had been working part-time in a supermarket for 15 years, but when a full-time role came up as a meat packer she took it, happy to earn more.
“There was a changeover of staff quite regularly over the years, but even with different groups of ladies, it was really good fun and I enjoyed the work,” she says.
But the arrival of a new staff member caused a detrimental change in dynamics. “She didn’t like anyone telling her what to do,” recalls Sandra, who, as one of the longer-serving staffers, had always been happy to help induct new arrivals. “She kept saying, ‘You’re not the boss of me’, when I’d try to help show her how to do something, and she gathered up some other people she could influence and basically, they isolated me. We’d all be working in close proximity but the only conversation I’d get would be ‘morning’ and then nothing at all for the rest of the day, even though they were all talking to each other.
“As the exclusion got worse, the others would get instructions but I wasn’t given directions as to what I should do. For the heavy-lifting jobs I’d need someone to help me but nobody would. I was excluded, ostracised and ignored.”
She told her manager and the store manager but nothing was done. “I’d be crying going to work. I’d break out in hives because of the anxiety. I was so tense I often thought I was going to vomit, and I was only sleeping four or five hours a night.”
Eventually, Sandra suffered a stroke – something she attributes to the stress and lack of sleep causing her blood pressure to rise.
She returned to the department part-time but the ostracism became so unbearable she put in a formal complaint. The case was investigated by her employer without a resolution and Sandra was told to return to her work. When she requested moving to a different area of the store, an independent mediator was brought in, who supported her request. However, Sandra suffered another stroke and had to stop work completely.
“I was left feeling hurt and grieving,” she says. “I’d lost my job, my social connections and my health. So much was taken away from me. The feeling of belonging and being socially connected is vital to the wellbeing of people and my case is proof of that.”
The First Union raised concerns on Sandra’s behalf. “The way the employer handled it was all a bit of a joke,” Lampert says. “Sandra was on the health and safety committee at her workplace and for years asked many times what the firm’s bullying policy was. They kept saying they needed to create one but as far as I understand it, they never did.”
Hospo hotspot
Bullying and harassment rates vary across industries. Stats NZ’s Survey of Working Life: 2018 found the sectors with the highest reported bullying and harassment rates were healthcare and social assistance (18.8%), public administration (18.1%) and education and training (14.6%).
David Williamson, an associate professor at AUT’s School of Hospitality and Tourism, says problems in hospo and tourism are severe, after conducting a series of surveys over four years in the sector, which employs about 300,000.
“We found pretty consistently across the first three years’ surveys that around 50% had experienced bullying and harassment,” he says. “Surprisingly, this year’s figures look likely to be lower, but they’re still disturbingly high and majorly concerning.”
Respondents reported a mix of physical, verbal, racial and sexual abuse by colleagues (40%), customers (20%) and managers and supervisors (30%). “Many reported it’s difficult to deal with this when the person harassing is the person to report it to,” says Williamson, who spent 20 years in the sector, including working in bars, restaurants and wedding venues here and overseas.
He notes that about half don’t report harassment or bullying for fear of repercussions. And a quarter reported no action was taken even after incidents were reported.
“Hospitality and tourism is particularly problematic in a number of ways, with high turnover, relatively low pay and often questionable conditions.
“It hasn’t always been that way. When I first got a job as a bartender in the 1980s, we were well paid, had good conditions and were protected by collective agreements across the entire sector run by a very powerful union.
“The change was sparked by the 1984 Labour government’s change to free market, neoliberal policies. The switch away from legislation that had supported powerful unions and collective agreements meant a reliance instead on individual agreements negotiated between the person and their employer.”
Young snowflakes myth
Williamson is encouraged by the Restaurant Association’s move to accredit “good” employers. “It has moved ahead with a HospoCred system, whereby employers can register, showing they’re fulfilling their obligations under the law.
“One of the things I hear a lot is people in the industry saying part of the problem is that the ‘younger generation are snowflakes, they’re too sensitive’. I’m super uncomfortable about that – I hear it constantly, invariably from older men. It shows an underlying problem that the very same people who say the industry has trouble with high turnover and recruiting are those employers who disparage the entire generation they’re recruiting in.
“And I don’t think it’s true at all – the current generation have been through the most hellish times with Covid and massive disruptions. I see them in my classrooms and think they’re tough as nails. The difference is that, quite rightly, they don’t tolerate being spoken to rudely or working in a less than pleasant environment.”
When someone experiences bullying and harassment at work, the impacts are far-reaching. For Jane Barnes, this not only meant cutting off her teaching career but isolating herself from her kindergarten whānau.
“Workplace bullying is rife and it’s diabolical,” she says. “Somehow, the law needs to change. If it doesn’t, what happened to the bullying victim that led to Brodie’s Law can easily become the story for so many more.”
Wake-up call
Aotearoa is very much behind Australia when addressing the issue of workplace bullying, says lawyer Andrea Twaddle.
“They’ve definitely got a jump on New Zealand. In many ways, we’re following their lead in some health and safety trends, including prevention and management, which could help fast-track our response.”
Consistent with their obligations under the Health and Safety at Work Act, organisations should have a focus on eliminating or minimising the risk from bullying and harassment. “This should include risk assessments to identify factors that may give rise to bullying and harassment and implementing preventive steps to reduce the risk. Like any system around safe practice, these systems should be regularly reviewed for effectiveness.”
The 2021 MBIE report “Bullying and Harassment at Work” outlines what is known about the nature and extent of bullying in the workplace, as does the Human Rights Commission research, says Twaddle. But though the problem is acknowledged as widespread and serious, current systems for preventing and responding to such behaviour haven’t resulted in legislative change.
WorkSafe’s 2017 guidelines “Preventing and responding to bullying at work” and draft guide “Mentally healthy work – good-practice guidelines for managing psychosocial risks at work” are available to employers but neither document has any legal standing.
A recent Employment Relations Authority case, Parker v Magnum Hire, helps illustrate a recent trend of increasing compensation awards by the authority and Employment Court, says Twaddle. In the Magnum Hire case, former general manager Dave Parker claimed the bullying behaviour of his employer included excessive and unprovoked personal criticism and verbal abuse, threats to his job security and public humiliation, and led to post-traumatic stress symptoms and hospitalisation. He was awarded compensation of $105,000 plus lost wages, bonus and holiday pay.