When considering bullying in the workplace, it is important to remember that bullying doesn’t just occur amongst peers or down the chain of command – managers can also be bullied by staff. This is often referred to as ‘upwards’ or ‘reverse’ bullying. In this post we look at a case of upwards bullying from across the ditch (McGowan v Nutype Accessories Limited AC 11/03  NZEmpC 16) and consider steps that might assist employers to manage instances of upwards bullying.
In McGowan, the Court found that the general manager of a manufacturing company had been bullied by a subordinate employee over a period of three months. The bullying took the form of verbal abuse (involving obscene language), offensive insults and personal threats. The general manager repeatedly informed the company’s managing director, but the managing director was slow to react. Even when the bullying continued while the employee was on his final warning, the managing director took no action against the employee. The general manager resigned. He successfully argued that his resignation amounted to a constructive dismissal.
The threshold at which conduct amounts to bullying is not necessarily higher for an employee with management responsibilities. In fact, the Court in McGowan stated that as the general manager had no one else but the managing director to turn to, the employer had a particular responsibility to address the bullying. The Court criticised the company’s management for not taking steps to investigate the undermining of the general manager. The Court concluded that the company failed to provide a safe working environment for the general manager.
The new Fair Work Act anti-bullying laws apply to all levels of employees and allow managerial staff to bring applications before the Fair Work Commission. However, in the case of upwards bullying, the exception to bullying if the conduct is reasonable management action will almost always have no relevance. Although, it does seem likely that ‘reasonable’ conduct by employees towards management (for example, raising legitimate issues in the workplace) would not amount to bullying.
In order to mitigate the risks of upwards bullying, employers should ensure that their anti-bullying policies expressly apply to upwards bullying. A manager’s role and responsibilities should be explained to employees, and the employees should be made aware that bullying of managers is as equally unacceptable as other forms of bullying and will not be tolerated by the employer. Managers should also have a clear understanding about who they should speak to within the company if they believe they are being bullied.
If an employee who has made a bullying application to the FWC has been bullying his/her manager, it would also be sensible to raise the complainant’s upwards bullying with the FWC.