LEGAL Implications - Bullying Prevention

Are You Preventing Workplace Bullying?

The pro-active approach to the prevention of bullying by workplace safety regulators throughout Australia and the media’s interest in workplace bullying prosecutions as evidenced by a recent New South Wales case have highlighted the need for employers to take steps to prevent bullying at the workplace. What is bullying? Workplace bullying is repeated inappropriate behaviour that can occur at work and/or in the course of employment. The Victorian Workcover Authority defines workplace bullying as repeated, unreasonable behaviour directed towards an employee or a group of employees, that creates a risk to health and safety. It may be direct or indirect, verbal or physical, or some form of negative interaction between one or more persons against another or others. Bullying behaviour can be regarded as undermining an individual’s right to indicative work. The following types of behaviour, where repeated or occurring as part of a pattern of behaviour, could be considered bullying: • verbal abuse; • excluding or isolating employees; • harassment; • intimidation; • assigning meaningless tasks unrelated to the job; • giving employees impossible assignments; • deliberately changing work rosters to inconvenience particular employees; or • deliberately withholding information vital for effective work performance. The statistics on the prevention of workplace bullying are disturbing. In 1998 a Morgan poll found that 46% of Australian employees had been verbally abused or physically assaulted by a co-worker or manager. In October 2003 a survey of Victorian employees found that 14% had experienced bullying at work in the preceding six months. Of those who reported they had been bullied, 71% had been bullied by a manager. WorkCover NSW estimated that the costs of violence-related injuries in NSW in the financial year 1997/1998 was in excess of $13 million. The Victorian Workcover Authority reported that workplace bullying claims totalled in Victoria exceeded $57 million in the financial year 2001/2002. Is bullying unlawful? Bullying is not expressly prohibited by legislation in Australia but it is unlawful given the broader responsibilities owed by employers at the workplace. In all States and Territories legislation exists governing occupational health and safety. As a result, employers have obligations to provide and maintain, so far as is practicable, a working environment that is safe and without risk to health. Workplace bullying and occupational violence creates an unsafe working environment and risk to the health of employees. Accordingly, if employers do not take steps to prevent bullying and violence then they are failing to meet their principal duties to provide a safe working environment. Workplace bullying and occupational violence may also be unlawful by virtue of the various anti-discrimination statutes in Australia. Such statutes prohibit discrimination of employees because of a particular attribute (such as their age, race or sex) and also prohibit sexual harassment. Quite commonly, workplace bullying can contravene such anti-discrimination legislation. Who are the protagonists? Who is liable? Workplace bullying can take place between staff members or between employees and any customers, contractors or visitors that they are dealing with. Young employees appear to be particularly vulnerable to bullying, especially in workplaces where older employees may exert power and influence in an inappropriate way. Ultimately it is the employer who will pay the price for workplace bullying. Employers in particular are liable for fines from prosecution under health and safety legislation. Where bullying takes the form of discrimination or sexual harassment, they can be held to be “vicariously liable” (that is, liable for the acts of their employees) and awards of damages may be made against the employer. The bottom line is that responsibility rests with employers to take pro-active steps to avoid workplace bullying. What happens if workplace bullying occurs? Traditionally, the effects of workplace bullying have been that employees either sue their employees for negligence, bring discrimination claims or lodge unfair dismissal applications alleging that they were forced to resign because of the bullying and were constructively dismissed. Recently employment lawyers have noticed that workcover authorities are more and more prepared to prosecute employers if workplace bullying is occurring at their workplace. Earlier this year a joinery company was fined $24,000 and its directors were personally fined $1,000 each under the Occupational Health & Safety Act 2000 (NSW). A 16 year old labourer was a victim of a single episode of workplace bullying. The bullying was extreme. The labourer had his body wrapped up in a cling-film machine and at one point he was fastened to a trolley and pushed over a four metre drop. He also had is mouth filled with saw dust and glue. The case’s significance lies in the fact that it represented the first occasion in which managers had been individually prosecuted for allowing bullying. It is an indication that managers who turn a blind eye to any form of workplace bullying would do so at their peril. The costs associated with bullying-related claims have been well recognised. In 1999 a plaintiff that had been the victim of “pranks” (having been stripped naked and having grease applied to his genitals and then being hung in harness ten feet off the ground at the workshop) was awarded $350,000 by the County Court of Victoria. An employee who was assaulted by another employee successfully sued his employer for $108,000 in the ACT. An employer of a radio station was repeatedly verbally abused by her manager successfully sued the station for a sum totalling almost $550,000 in 1999. What can be done to avoid liability? It is generally accepted that in assessing any incidents of workplace bullying, a Court will ask the following questions: • Was there a culture of workplace bullying in the organisation? • Were there prior incidents in the workplace? • Did supervisors and managers allow such incidents to take place? • Does the employer have a policy on workplace bullying? • Is that policy in enforced? • Was there adequate supervision? In years to come, employers will find it extremely difficult to defend claims of workplace bullying if they have not imposed a workplace bullying policy within their organisation. Such a policy should clearly prohibit bullying and should include a statement of the organisation’s commitment to a work culture where bullying is not acceptable. It should also set out the measures which will be taken to achieve such a culture, responsibilities of staff at all levels, procedures for reporting instances of bullying, disciplinary responses and arrangements for ensuring the policy is having its desired effect. Source