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Mobbing - the new bullying

9 march 2015


Failing employment relationships may not always go out with a big bang. In some cases, a dysfunctional employment relationship may present itself simply by a host of small events which overall undermine the employment relationship.

Human nature often leads to both parties attempting to make the other party’s life difficult. 

The recent case between Principal Elgin Edwards and the Bay of Islands College Board of Trustees (BOIC) is one example of this. Both parties alleged a collection of small transgressions by the other party.

The Employment Court used the term “mobbing” to describe adverse acts against the Principal which could amount to a claim for a personal grievance. 

The Court observed that mobbing was an “increasingly reported phenomenon”. Referring to an International Labour Organisation study, the Court observed that mobbing has become a “growing problem in Australia, Austria, Denmark, Germany, Sweden, the United Kingdom and the United States”.

Alarmingly, the Court observed that in Sweden it is estimated that mobbing is a factor in 10 - 15% of suicides.

It defined mobbing as involving “ganging up” or “mobbing” a targeted employee. It may include “continuous, malevolent action to harm, control or force another person out of the workplace”. It can include making continuous negative remarks, criticising them, isolating a person and leaving them without social contacts. Mobbing was also described as the concerted exercise of improper pressure for the removal from employment of a particular employee.

The “mobbing” alleged by the Principal was a concerted resistance by a group of other teachers to the implementation of workplace changes proposed and directed by Mr Edwards. Mr Edwards also claimed that the teachers would generally undermine his position, including by bringing dubious, groundless or trivial complaints which he said contributed to a loss of trust and confidence in him.

Mr Edwards alleged that mobbing was a contributing factor which to lead to his dismissal. The Court found that approximately one third of staff would consistently oppose many of the changes that Mr Edwards would propose.

The Court however held that mobbing was not a factor which led to Mr Edward’s dismissal. The person who made the decision to dismiss Mr Edwards was conscious of this improper pressure and had even rejected complaints where it was apparent they were improper.

In turn the school also alleged repeated transgressions by Mr Edwards.

The Court observed that repeated but minor incidents, while insufficient on their own to justify a dismissal, may collectively justify a dismissal. However, these incidents must amount to a generalised loss of trust and confidence. This is only likely to arise in “rare and unusual circumstances”. Furthermore, the employer must ensure that such a state of affairs must be attributable to the employee and not the employer.

BOIC gave four actions of Mr Edwards that they alleged amounted to serious misconduct.  The Court considered each ground individually and found that none were sufficient to justify a dismissal. 

The Court held that only one of the grounds could contribute towards a generalised loss of trust and confidence. BOIC had responded to that event by putting in place a guidance and assistance programme to deal with these issues. However, after a few months of this programme and without any further incident, BOIC made the decision to dismiss Mr Edwards. 

The Court concluded overall the Mr Edwards had been unjustifiably dismissed as BOIC should have given the process fair opportunity to work. He was awarded $16,500 in compensation.

This case includes lessons for employees, employers and staff. Employers must be careful to ensure that a culture does not emerge in their workplace where staff collectively attempt to undermine or attack an employee. In the context of dismissal, employers should be careful that this does not influence their decision to terminate their employee.

By the same token, employees risk their continued employment by making repeated, albeit minor, infractions. The threshold for a dismissal in these cases is high. Employers must ensure that they properly address each infraction and follow through with any rehabilitative measures.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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