Legal bullying

Results from a recent survey of practitioners at the criminal bar are, on the face of it, quite shocking. 88% of the 300 respondents said they had experienced or witnessed bullying and harassment, including sexual, over the last four years.

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The survey was voluntary and two-thirds of the respondents were women.

The nation’s chief justice has issued a rare rebuke to her own judiciary, warning judges to show respect and courtesy to witnesses, litigants and lawyers. Chief Justice Dame Sian Elias said she expected all judges to deal with litigants, witnesses and counsel with respect and courtesy.

The survey was conducted by the Criminal Bar Association of New Zealand. Questions were asked about mocking, raising the voice, shouting and professionally related bullying or harassment.

The absence of information on sexual harassment is telling. Don’t they want to know the extent of the problem or does the old boys’ network not care to address it? Harassment and bullying are not acceptable in any profession, but just how bad is it?

Former litigation lawyer Olivia Wensley, when interviewed by Mike Hosking, said sexual harassment in NZ law firms is the norm and she believes the NZ Law Society should be regularly surveying to determine the extent of the problem and also addressing it. Wensley says that in Australia 75% of women in the legal profession claim to have been sexually harassed and that her own complaints of sexual harassment in NZ met with a brick wall when law firm partners refused to acknowledge the problem.

Referring to harassment and bullying, in general, this survey showed:

Sixty-nine per cent had experienced or witnessed mocking, professionally-related bullying or harassment, 58 per cent shouting or raised voice, and 44 per cent personal comments or insults.

Threats – overt or covert – were reported by 27 per cent of respondents, and 17 per cent had seen or experienced harassment or bullying based on race.

Respondents were also asked who was doing the harassing or bullying, with options including a judge, court staff member, opposing counsel, employer, colleague, police, client or member of the public.

Two-thirds pointed the finger at judges, 43 per cent at colleagues and just over 30 per cent at opposing counsels or clients. Twenty-three per cent blamed employers or police.

Presumably this is solely verbal abuse because there is no mention of physical abuse. We can assume that verbal sexual harassment is either sexual innuendo or unwelcome verbal sexual advance.

Day-to-day bullying is described rather well by the NZ Nurses Association:

Overt bullying can include:

Threats, intimidation, stand over tactics and coercion;

Verbally abusive or degrading language or gestures;

Shouting, yelling or screaming;

Unexplained rages;

Unjustified criticism and insults, nit-picking and fault-finding without justification;

Constant humiliation, ridicule and belittling remarks;

Unjustified threats of dismissal or other disciplinary procedures.

Covert bullying can include acts such as:

Deliberately overloading an employee with work and imposing impossible deadlines;

Sabotaging someone’s work by withholding required information;

Hiding documents or equipment;

Constantly changing targets or work guidelines;

Not providing appropriate resources and training;

Isolating or ignoring someone on a consistent basis;

Malicious teasing, practical jokes, gossiping;

Excessive criticism on a regular and systematic basis;

Malicious freezing out, excluding and ‘sending to Coventry’ (not speaking to someone).

Bullying is common enough in any workplace and it’s not pleasant to address, but address it we must.

Reining in errant judges and legal professionals is difficult for the legal eagles who responded to this survey but they’ve made a good start by collecting evidence of the problem and getting the backing of the Chief Justice in addressing it. The other thing they must do is to refute verbal abuse and intimidation when it happens.

Staying silent is an invitation for further abuse. Use of the “s” word when you speak up is absolutely vital. No, not that “s” word, the other one – stress.

The victim must immediately tell the bully that their comment or delivery makes them feel stressed. No one can argue about your feelings and, against bullying, stress is your friend. Taking a short stress break, stress leave day or lodging a stress complaint with HR are all effective weapons in this war.

But, it’s a big leap from handling offensive behaviour in the workplace to seeking legal remedy. To have legs in employment law bullying must be persistent and a misuse of power so very few choose the legal path because of its stringent criteria. Actions are repeated (ie not an isolated incident) and the desire to gain power or exert dominance is evident, as is the intention to cause fear and distress.

The Employment Court or Employment Relations Authority want to see evidence of a pattern of behaviour by someone to gain power or dominance with the intention of the bully being to cause fear and distress. Also, a claim must be made within 90 days of the first offence.

The definition of bullying is “repeated oppression, psychological or physical, of a less powerful person by a more powerful person.”

Given the legal avenue is a large mountain to climb it’s not surprising that victims of persistent bullying either grow thicker skins or vote with their feet.

But, the option of subduing bullies should never be discounted. With the support of others, especially those wily old dogs (and bitches) in the workplace who have mastered the art of survival, most of us can effectively deal to them.

The trick is to act immediately and certainly before the bully gains traction and grinds you down. May the “s” word be with you.

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