Workplace bullying and harassment - Key lessons to be learnt

Bullying and harassment are key workplace behaviour issues and very often affect the mental and physical health of people in a workplace.

Australia has one of the highest levels of workplace bullying in the world as found in recent research conducted by an Australian University.  This same research indicated that about one in ten (1 in 10) people experienced some form of bullying in the first six months of this year.

In this newsletter, we define both bullying and harassment and briefly explain the core differences.  The major portion of this newsletter is however devoted to examining what bullying is and what it is not.  We conclude with some helpful advice based on lessons from court cases that have dealt with bullying in the workplace.

What is bullying?

Workplace bullying is repeated, unreasonable and unwelcome behaviour directed towards an employee, a group of employees and contractors that creates a risk to health and safety.  For ease, we will use the term “worker” to describe any and all of these people.

With respect to bullying, ‘repeated’ denotes this unwanted behaviour can take place over a period of time.  ‘Unreasonable’ behaviour is simply behaviour that can be victimising, humiliating, intimidating or threatening.

Bullying is a health and safety issue, and your obligation to prevent bullying relates to your duty as an employer to provide a safe workplace for your workers. You can be investigated and prosecuted by your State regulator for a breach of health and safety legislation if you allow bullying to occur in your workplace.

Workers are also able to complain to the Fair Work Commission about workplace bullying to receive an order to stop the bullying.

What is harassment?

Workplace harassment is unwanted behaviour that offends, humiliates or intimidates a person, and targets them on the basis of a characteristic such as gender, race or ethnicity.

Harassment relates to the prohibition in anti-discrimination laws against sexual harassment and sex-based discrimination in the workplace. These laws differ from health and safety laws in that a victim of harassment can make a complaint to an external agency – in effect, launching a legal proceeding against your company.

What legislation covers bullying at work?

The legislation that covers bullying at work is the Fair Work Act 2009.  The legislative definition is:

Bullying at work occurs when a person or a group of people repeatedly behaviour unreasonably towards a worker or a group of workers at work and the behavior creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.

We all have a duty to help prevent workplace bullying. Our current health and safety laws and discrimination laws require us to take reasonable care that workplace behaviour does not adversely affect the health and wellbeing of others.  Our workers are also required to comply with policies and reasonable directions given to them about their behaviour in the workplace.

What are some examples of bullying?

Following are some examples of behaviours, whether intentional or unintentional, that may be workplace bullying:

  • abusive, insulting or offensive comments and language
  • conduct that is aggressive and intimidating
  • belittling or humiliating comments
  • victimisation
  • practical jokes or initiation ceremonies
  • unjustified criticism or complaints
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours
  • changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers
  • deliberately excluding someone from work-related activities
Cases of behaviour involving violence (for example physical assault or the threat of physical assault) should be reported to the police.

What is not workplace bullying?

Single incidents of unreasonable behaviour are not workplace bullying.  Despite this, the potential for a repeat means a single incident should not be ignored.   One key management responsibility seen by many as bullying is the giving of directions.

The key aspect of giving directions is to do in a reasonable way.  It is reasonable for managers to allocate work and give feedback on a worker’s performance.  A manager exercising their legitimate authority at work may bring about some discomfort for a worker; this discomfort sometimes being interpreted as bullying. 

Here are some examples of reasonable management action:
  • setting realistic and achievable performance goals, standards and deadlines
  • fair and appropriate rostering and allocation of working hours
  • transferring a worker to another area or role for operational reasons
  • deciding not to select a worker for a promotion where a fair and transparent process is followed
  • informing a worker about unsatisfactory work performance in an honest, fair and constructive way
  • informing a worker about unreasonable behaviour in an objective and confidential way
  • implementing organisational change or restructuring
  • taking disciplinary action including termination of employment where appropriate in the circumstances.

What are some key lessons from court decisions on bullying?

Over recent years in various courts and tribunals, there have been some key lessons to be learnt by treating alleged bullying seriously as part of safeguarding health and wellbeing in a workplace.  The following key lessons are provided by a leading employer body.

Lesson 1: Never ignoring complaints of bullying

Regardless of the perceived merit of a bullying complaint, it is always wise and sensible to investigate every claim of bullying.  To ignore it may not only worsen the situation but can be very easily seen as the employer condoning the bad behaviour.

Lesson 2: Ensuring your managers are trained in complaint handling procedures

Managers need to be able to respond to a worker raising concerns with them about the behaviour of other workers.  Managers that are not equipped to do so may ignore the unacceptable behaviour potentially resulting in harm (mental or physical) to the victim or legal action.

Lesson 3: Ensuring your workers know how to raise a complaint

Employers have a duty of care to their workers to provide a safe working environment and it is important that your workers know what to do when they are subject to, or witness, bullying in the workplace.

Lesson 4: Promptly taking action

It is always much more difficult to act a long time after any incident.  Delaying taking action can also worsen any complaint of bullying and even allow it to continue – it effectively means the bullying behaviour is being condoned.  Act promptly to avoid matters getting worse and harder and even more costly to manage.

Lesson 5: Do not tolerate bad behaviour

One of the saddest bullying cases involved a young café worker, Brodie Panlock, who suffered bullying nearly every day for more than a year.  The owner of the business was not only aware of some aspects of the bullying but was present on occasions and sometimes condoned it.  Brodie ended up committing suicide.

Brodie’s employer and the three offending workers were fined over $300,000 between them (including a fine of $220,000 for the employer).

This case also resulted in criminal legislation making bullying punishable by up to 10 years in prison.

Lesson 6: Be confident and reasonable in performance management

Many managers are becoming increasingly reluctant to manage performance issues for fear of being accused of bullying.  Fortunately, the Fair Work Commission matters clarify that in the context of performance management, actions taken by managers to correct unacceptable behaviour or under performance do not need to be perfect to be considered ‘reasonable’.  Key to this is that managers should follow established routines and have a policy to assure workers about that process that will be followed and to support building the confidence of managers to deal with performance issues.

Summary
 

Workplace bullying can and does have a devastating impact on its victims.  The various courts and tribunals are handing down decisions where substantial damages are being awarded to victims and equally substantial fines are being imposed on business owners and bullying workers.  In addition, in Victoria, there is the prospect of imprisonment in cases of serious bullying.  These provide considerable incentive for businesses to have policies and practices related to bullying and other workplace behaviours.  

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*Please note that the above information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal or financial advice on any particular matter. Where you would like additional information and support about the content in this document please contact AB Phillips.