12th January, 2016
What is bullying? How common is it in Hong Kong?
Bullying has to be distinguished from motivating and pushing employees to improve their performance by giving constructive feedback. Verbal abuse, being given the most unpopular tasks and being ignored by other staff and cyber bullying, are the most common types of bullying. Setting the employee up to fail is a rarer example of bullying (http://memiewrite.blogspot.sg/2011/04/bullying-in-workplace.html).
Bullying is often intended to break an employee psychologically and can involve direct or indirect acts of aggression against the target. Often the target is subject to destructive criticism or alienation from fellow employees by management.
The bully may go out of their way to destroy the target’s career and reputation by spreading malicious rumours about them and making illegal defamatory comments about them to potential employers. Sometimes they do this when they fear that the employee may spread negative rumours about them, in such a case the target effectively becomes the enemy and the employee is left in a lose-lose situation.
Bullying in the workplace is very common in Hong Kong, over 50% of employees have suffered it (http://www.scmp.com/news/hong-kong/article/1294693/half-hong-kong-workers-bullied-most-suffering-silence-survey). There is anecdotal evidence to suggest it is more accepted in Asian countries than western countries because of cultural differences (http://www.hrinasia.com/general/are-asians-more-accepting-of-workplace-bullying/). The fact that bullying is so common is evidence that normal employees are being targeted and there is no particular weakness on the part of the employee. Sometimes the target is even above average, being more capable and professionally competant than the bully and the target is a threat to the bully.
Bullying amongst professionals
Bullying is common amongst professionals, especially in the legal profession. For example trainee lawyers are at high risk because they often cannot make complaints to the law society or take legal action for fear of damaging their reputation and making themselves un-employable. A trainee is on a fixed two year contract and cannot be fired without serious justification such as fraud. In a recent article by the The Lawyer magazine it was stated that there was a sharp increase in trainee lawyers seeking cognitive behavioural therapy, one of the reasons stated was the inherently confrontation nature of law firm environments (http://jobs.thelawyer.com/article/number-of-lawyers-seeking-cognitive-behavioural-therapy-rockets/).
Reporting bullying to Human Resources (HR)
The textbook career advice from HR professionals and career counselors is to report it to HR. This is complete rubbish, spoken by people who have no real corporate experience or worse yet, those who are HR professionals themselves. More often than not, the HR is on the side of management and is actually there to protect the company and management from lawsuits. Yes, they may on occasion deal with employee complaints and bullying, but when push comes to shove, their bottomline is really to protect the company, not the employee.
Reasons why employees get bullied
There are many reasons. Sometimes bullying is intended to push the employee to quit, perhaps not due to poor performance but to avoid a severance payment (http://www.labour.gov.hk/eng/faq/cap57l_whole.htm). Some bullying is due to the character flaw of the bullying manager who may be a miserable person who bullies people because he wants to see others suffer just as he has done at work. Sometime it is simply because the employee is talented and poses a challenge to management.
How to defeat the bully
There are many different types of bully and you should choose your approach accordingly. Cindy Teo of iCoachStars recommends “maintaining a happy front” as one of the ways to thwart your bully’s plan. Since one of his purposes may be to make you quit, smiling, staying happy, simply doing your job as usual, and collecting the paycheck for as long as you can, may be your best strategy. Don’t give the bully a chance to give you an official bad report in the annual company performance review using poor attitude or poor performance against you. The bully wants to make your life miserable, however, you can choose to not to fall into the bully’s trap. If he (I have referred to the bully as “he”, but the bully is commonly a female instead) sees that the target appears to be happy in the workplace, it is likely that he will be the miserable one.
Another approach is to eat humble pie. Inviting the bully for coffee and have a friendly chat with him to clear the misunderstandings. Call for a truce and have a clean slate going forward. Seeing that you have surrendered may change their attitude, if all the bully wants is to feel superior to you. As a professional coach experienced in handling bullying cases, Cindy says:
”The two approaches above call for doing the right thing, for your own mental health and in protecting your own career. If you’ve tried to make peace and your attempts at reconciliation were rejected, then you might want to consider other options.”
An approach which is not for the faint hearted is to make out the grounds for a legal claim to HR without spelling out it out directly, so that HR realises they have a potential law suit on their hands, the target can put fear into the bully that they will face litigation.
Another approach is to try to integrate better with other staff members and become closer to the group, such that it is more difficult for the bully to single them out. However this approach will not work when the bully has already spread rumours about the target to alienate them from other employees.
While bullies may occupy higher positions, through merit or otherwise (such as connections), some bullies are deeply unhappy people and need to take their misery out on other people and they relish seeing other people feel down, they are “emotional vampires” (N.B. not all bullies are "emotional vampries", some are simply doing their jobs, which may involve using every means to push an employee to quit, but cross the line into bullying behaviour).
When all else fails and the bullying is damaging your health and career, you should take legal action as discussed below.
Taking recordings
Secretly taking notes and recordings is the most practical and common advice, one hears. The employee should be careful not to be seen to breach confidentiality rules of their employment by recording confidential meetings, but only record those instances of bullying relevant to any potential litigation. Keeping email records is also important. You may have to keep email evidence of your bosses bullying, for example changing deadlines unexpectedly or sending abusive messages, in case you are fired and need to take your employers to an unfair dismissal hearing.
Report the case to your professional association
Due to the high volume of serious complaints that your professional association (e.g. the law society) deals with, it is unlikely that they will be of great help in handling your case. You should handle your own case, do not trust third parties with all the information about your complaint, because there may be conflicts of interest.
Getting a life coach / executive coach
A professional life coach who is experienced in dealing with professionals who are being bullied at work, will be able to help you handle relationships better in the office and manage any transitions that you have. In short professional coaches may help you with damage limitation and a skillful coach may even be able to turn the situation around so the bullying stops. You should seek a coach who is undergoing training accredited by the ICF (International Coach Federation), certified or currently registered as a coach by the ICF. For further information on how coaching can help your case, you may contact Cindy at cteo@icoachstars.com.
Dismissal from employment under Hong Kong law
I will not go into detail here about the law, suffice to say that unlike other countries such as Australia, where they have anti-bullying laws (http://www.marquelawyers.com.au/assets/workplace-bulletin_181213.pdf?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original), there is no law against bullying in Hong Kong. But the employee may rely on breaches of the relevant anti-discrimination ordinances (the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance) and the common law duty of the employer to his employee to provide a safe place and a safe system of work. Where there is an “abusive work environment", it is an act of negligence on the part of the employer. The employee may also claim constructive dismissal, which is a form of wrongful dismissal, where the employer is said to be in breach of the employment contract, but the employee must first leave his position.
Tribunals and lawyers
Usually after a campaign of bullying intended to make the target quit fails, the target is unfairly dismissed. If the employee fights the case for damages, he will first take his case to the employment tribunal (if your employment contract has an arbitration clause, you should seek legal advice first about whether you can fight your case in a tribunal), you can get legal advice to help you prepare your case for the employment tribunal, though you are not entitled to get a lawyer to represent you in the case. The tribunal’s decision can be appealed and a barrister (a lawyer specialized in arguing in court) can fight your case in court and you may get a greater amount of damages, such as damages for breach of implied trust and confidence on top of damages for contractual and termination payment damages (https://www.dlapiper.com/en/hongkong/insights/publications/2013/09/summary-dismissal-in-hong-kong–an-expensive-les__/).
Sometimes solicitors will need to get you a non-defamation agreement from your employer, or you will need your solicitor to send a legal letter to the employer to stop them from making defamatory libelous (written) comments about you or defamatory slanderous (oral) comments after you have left your employment.
It may be difficult to find a good firm of solicitors in Hong Kong who acts for the employees and not the employers. Many of the corporate law firms in Hong Kong will not act for the employee because they do not want to upset their relationships with their best clients – corporations and because the employee may not have such deep pockets. It is well known that Hong Kong is an "employer-friendly" jurisdiction (http://www.freshfields.com/en/knowledge/The_Asia_Employment_Law_Landscape_in_2015/) There are few barristers in Hong Kong who handle employment cases in court for employees, such as myself.
Changing your job
Where possible you should find another job before you quit, because the bullying may be an indication that the employer will force your resignation, otherwise he will have to unfairly dismiss you. Given that the employer usually has greater resources for litigation and an army other witnesses who will vouch for him, he will likely be in a stronger position than you when it comes to litigation, therefore you will be better off finding a new job before matters get worse.
Written by David Ashley Southern, Barrister
