August 14, 2022

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The Legal System

Statutory definition of bullying?

3 min read

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The Government has foreshadowed the prospect of defining bullying in statute. I think that would be a smart move as it would provide greater guidance to investigators, as I suggest below.

Currently, we have a definition promulgated by Worksafe which is widely used but many employers develop their own definitions as well.

The plethora of definitions makes for difficulty in developing a jurisprudence around a particular statutory definition and there are a number of aspects of the work of investigators which are made more difficult by the absence of agreement around some key issues.

One of those issues is the question whether the intention of the alleged bully matters. Some practitioners maintain that if the intention of the alleged bully is innocent then it cannot be held to be bullying. Conversely, the Worksafe definition focuses on the way the behaviour is received to the exclusion of the intention of the alleged bully. And arguably, that latter view accords with the legal precept from the law of tort and crimes that you take your victim as you find him or her.

So, if I hit a man with an eggshell skull and he dies, when a person with a normal skull would simply be bruised, then throughout the common law countries the result is the defendant is liable for the death even though it would appear not to be foreseeable: Dulieu v.White and Sons (1901) 2K.B. 669.

Similarly, in the criminal law, a defendant must take his victim as he finds her. In R. v Blaue [1975] 1 WLR 844, Court of Appeal (UK), Blaue stabbed the victim four times. She was taken to the hospital where staff proposed to give her a blood transfusion which would save her life. But she was a devout Jehovah’s Witness, refused the transfusion and died. Blaue’s appeal against a manslaughter conviction failed on the footing he had to take his victim as he found her despite the complete absence of foreseeability, ( he would have had no way of knowing that she was a Jehovah’s Witness). 

A second issue that is frequently challenging is whether all behaviours perceived by the victim as bullying, are in truth bullying behaviours. This is especially problematic when management actions are involved. Many employment lawyers will defend their employee clients from performance management processes by alleging their client is being bullied. In effect they are using the bullying allegation as sword rather than a shield.

Worksafe deal with this relatively common problem by identifying a range of exceptions to the usual bullying rule such that normal management processes like performance management, the giving of lawful and reasonable instructions, and setting high performance standards are explicitly not examples of bullying.  

Nor are occasional examples of rudeness, tactlessness or forgetfulness to be classified as bullying behaviour.

But while the last group of exceptions may be straightforward, the earlier group involving management action, is not. If, as is sometimes the case, the alleged bully is a manager and the victim is a direct report, it will arguably be more challenging than usual for the subordinate to demonstrate bullying behaviour because the manager will no doubt maintain that they were doing no more than pursuing their obligation to manage their people.

In my view, the current Worksafe definition boils down to three principles. To determine that behaviour is bullying there must be:

  1. Persistent behaviour
  2. Unreasonable behaviour, assessed by the reasonable outsider
  3. Behaviour which causes or contributes to mental or physical injury.

I incline to the view that it would be best not to specifically exclude normal management processes like performance management ,from the ambit of bullying and just require the investigator to assess the nature and extent of the behaviour against those three precepts above. Such an outcome would put the onus on the investigator to assess both the quality and extent of say, performance management as well as any concomitant arguments that the subordinate was in fact being bullied. Without this modest change, I consider it is going to continue to be difficult for findings of bullying to be made where the protagonists are manager and subordinate.

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