The Issue
According to a 2013 study by the Vital Employee Service Consultancy, 53 per cent of 509 respondents in Hong Kong had experienced workplace bullying.
There is currently no statutory definition for workplace bullying in Hong Kong. However, workplace bullying can be understood as repeated unreasonable behaviour directed towards a co-worker, or a group of co-workers, that poses a risk to health and safety.
Examples of such repeated behaviour towards co-workers include: spreading false rumours; intimidation; physical threats or abuse; making offensive jokes; persistent criticism without any valid basis; stalking; ostracising; yelling or swearing; not allowing a response to criticism; and belittling their opinion. Bullying includes behaviour that is humiliating, intimidating or threatening.
People are allowed to have differences and disagreements in the workplace, but vocalising these differences and disagreements such things can be done without engaging in repeated unreasonable behaviour that is a risk to health and safety. In these situations, the manner in which something is said is equally as important as the words that are used.
An environment prone to bullying has many causes. It can be the result of a corporate culture in which employees are encouraged to compete against one another in order to survive in the company. It can also be the result of the employer’s attitude towards bullying. If bullying is ignored, it will continue. Moreover, if bullying is rewarded in any way, bullies are encouraged to be even more aggressive.
In a 2010 Hong Kong case, the judge found that applying pressure on a co-worker to accede to demands inconsistent with the original agreement, making orchestrated complaints to professional bodies, and using expletives in an insulting manner were considered bullying behaviour.
The Legal Risks
In Hong Kong, there is no legislation that specifically addresses bullying in the workplace. However, employers have a “general duty of care” to protect employees from injury at work, which includes physical and mental harm. By law, if an employer is aware (or reasonably should have known) that bullying occurred in the workplace, and did nothing to supervise or prevent it, this would be a breach of duty.
Aside from the general duty of care, there is also the implied duty of “mutual trust and confidence”. An employer is obligated to avoid behaving in a manner that is calculated and likely to damage its relationship with employees.
In a Hong Kong court case from 2010, the judge found that a manager used bullying behaviour in pressuring an employee to accede to demands that were inconsistent with his employment contract; making orchestrated complaints to professional bodies; and having temper tantrums and using expletives in an insulting manner.
In an earlier case, a property company was found not to be in breach of duty following a manager’s attempts to separate two quarrelling co-workers by asking one to see her at another office. The next day, the two had another quarrel in the same office, which turned into a fight. Both were subsequently fired. The employee who was asked to move offices later sued the company.
One of the factors that influenced the judge’s decision was that the employee was given the chance to work in a different office from his co-worker, but chose instead to work in the same office.
In a Hong Kong employment case in 2000, domestic helper Evelyn Bachicha was shouted at, pushed, kicked, punched, and subjected to psychological abuse of a degrading and frightening nature by her employer, Poon Shiu-man. Poon’s behaviour was found by the court to amount to a breach of the implied duty of trust and confidence, which rendered the employer liable to pay damages to Bachicha.
In this regard, Trust-destroying conduct is not confined to physical abuse; it can include psychological or emotional bullying. Bullying may also amount to trust-destroying conduct and could result in a liability for the employer.
The Solution
Allowing bullying to continue in the workplace will adversely affect the health of employees, result in a high turnover, decrease morale and productivity, and create difficulties in attracting and retaining talent.
Employers can tackle workplace bullying by changing the corporate culture and awarding appropriate “punishment”.
The best practice is to create and implement a policy which prohibits all forms of violence in the workplace, ranging from bullying and harassment to assault. The policy should provide a non-exhaustive list of examples of unacceptable behaviour; state the consequences of breaching the policy; and encourage the reporting of unacceptable behaviour.
Employers could also offer a confidential employee-assistance programme to allow staff members with mental-health problems and emotion-management issues to seek help and counselling.
Anticipate any legal risks by paying attention to behaviour bordering on workplace bullying. Insofar as it is possible to do so, employers should attempt to nip the problem in the bud by addressing issues immediately.
This article appeared in the Classified Post print edition as Are there bullies in your workplace?
