Workplace Bullying and Constructive Dismissal in NZ: Why It’s the Hardest Claim to Prove
Workplace bullying is arguably the most psychologically damaging employment issue a person can experience. It dismantles confidence, impacts health, and bleeds into home life. Yet, under New Zealand employment law, it is also notoriously the hardest dispute to establish and resolve.
The fundamental difficulty lies in human complexity. What feels like unacceptable intimidation to one person may be brushed off by another as a blunt management style or standard workplace banter. Workplaces are made up of individuals with diverse backgrounds, cultural perspectives, communication norms, and generational traits. Because emotional reactions and tolerance thresholds vary so greatly, the law cannot rely on subjective hurt feelings alone.
When taking a case to the Employment Relations Authority (ERA), the legal test does not turn merely on how deeply an employee felt injured; it turns on evidence.
The Legal Benchmark: WorkSafe and Objective Behaviour
To elevate interpersonal conflict to an actionable personal grievance, the behaviour must meet the objective standard recognised in New Zealand law, largely drawn from WorkSafe NZ guidelines:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm.
To establish this in an employment dispute, the ERA looks for two critical elements:
Repeated and unreasonable actions: Isolated incidents, personality clashes, or lawful, constructive management instructions delivered firmly do not meet the definition. The conduct must show a pattern of behaviour such as public belittling, shouting, malicious isolation, or targeted micromanagement.
Documented evidence: Contemporaneous records, emails, text messages, medical records, or independent witness corroboration. Without corroboration, disputes often become a case of "one person’s word against another’s".
Key Authority Insights: Lessons from the ERA
Having represented employees in bullying grievances before the Authority, clear patterns emerge on what makes or breaks these claims. Two real Canterbury and Otago determinations we took to the ERA illustrate the spectrum:
1. When Bullying Is Severe and Employer Retaliation Occurs (Tahuhu v Alpine 182 Degrees Ltd)
In Tahuhu v Alpine 182 Degrees Ltd [2022] NZERA 620, the front of house manager faced persistent verbal abuse and intimidation from the company director, who routinely yelled, slammed items, and belittled staff.
The Evidence: Crucially, this was not just the employee's word. Independent former colleagues and family members provided witness evidence corroborating that the director was aggressive and that the employee had suffered a severe breakdown requiring psychiatric care.
The Response: When our advocate raised a formal personal grievance, the employer retaliated by immediately locking the worker out of the payroll system and demanding her keys resulting in an unjustified disadvantage and dismissal.
The Takeaway: The Authority awarded $18,000 in compensation under s 123(1)(c)(i) for humiliation, loss of dignity, and injury to feelings. When direct abuse can be corroborated by witnesses and medical evidence, the Authority takes a severe stance against employers who subject staff to an unsafe workplace.
2. The Duty of Safety and Interim Protections (Drake v ETE)
In Drake v ETE [2024] NZERA 582, an employee raised allegations of bullying against three colleagues. While the employer attempted to investigate, they failed to put adequate interim safety measures in place between when the employee voiced extreme distress and when a written grievance was formalised.
The Standard for Employers: An employer’s primary legal obligation when bullying is alleged is twofold: investigate properly and ensure a safe working environment while that investigation takes place.
The Failure: The employer left the complainant working shifts alongside the person she was terrified of, without exploring targeted rostering separations or exploring her safety concerns.
The Takeaway: The Authority awarded $8,000 compensation for unjustified disadvantage. Even if an employer believes a complaint is unproven or exaggerated, failing to actively safeguard the employee while working through the complaints process breaches good faith and health and safety obligations.
Resignation vs. Constructive Dismissal
Because living under constant tension is exhausting, many employees simply reach a breaking point and quit. However, walking away can complicate your legal position.
To claim constructive dismissal (where a resignation is treated in law as an unjustified dismissal), you must prove that:
The employer engaged in a deliberate course of conduct to force you out; or
The employer breached a fundamental duty (such as failing to investigate bullying or provide a safe work environment); and
That breach made remaining in the job intolerable, giving you no reasonable choice other than to resign.
If you resign impulsively without formally raising your concerns, giving the employer an opportunity to fix the issue, or gathering medical and factual evidence, a constructive dismissal claim becomes exceedingly difficult to sustain.
What to Do If You Are Dealing With Workplace Bullying
Keep a contemporaneous log: Note dates, times, exact words spoken, context, and anyone who witnessed the exchange.
Seek medical support early: If the toxic environment is causing anxiety, insomnia, or clinical distress, consult your GP. Medical certificates provide vital objective proof of injury to feelings and harm.
Invoke formal policy: Familiarise yourself with your employer's code of conduct and reporting pathways, and submit formal written complaints rather than vague verbal concerns.
Get independent advice before walking out: Navigating the line between genuine misconduct, reasonable management action, and actionable bullying is intricate. Getting experienced advocacy advice early can prevent costly missteps.
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