Eliminating Workplace Bullying and Harassment

Like most Occupational Health and Safety (OH&S) risks, the 'elimination' of the risk of bullying (or 'harassment' – for present purposes the terms are interchangeable) from workplaces is, theoretically, straightforward.

Putting aside for one moment the '5 pillars' of the risk management process identified in legislation and related materials ¹, effective elimination of the risk of bullying and its consequences from the work environment requires two things:

• firstly, the establishment of appropriate risk management systems and processes; and
• secondly, their rigorous application.

Within the '5 pillars', the establishment of systems and processes incorporates hazard identification, assessment of risks, development of controls, and monitoring and review of the system), while their application picks up implementation of the controls.

Of course there ends the simplicity. At least three difficulties arise that are not necessarily common to the management of other safety risks.

Firstly, the nature of 'bullying' is that it is the kind of behaviour that can be difficult to identify as occurring. In many cases, differing perceptions will mean that what one person regards as 'bullying', another will regard as inoffensive or wholly appropriate or both. In other cases perpetrators might attempt to disguise deliberately malicious behaviour in some other, ostensibly legitimate, process.

Secondly, unlike some other forms of more discrete risks, bullying is impossible to isolate as a 'stand-alone' or 'onceoff' risk. Unlike installing a guard on a particular machine or designing a specific process for the safe undertaking of a specific hazardous activity, the system for managing the risk of bullying has to cover the entire organisation – from CEO to nightwatchman and everyone in between (including contractors).

Thirdly, various other 'formal' business systems and processes – usually with little or no safety focus at all – have the potential to give rise to bullying incidents. The result is that each of these systems and processes must incorporate the bullying system controls, and, the bullying risk management system must accommodate them. In other words, any business system for dealing with people needs, at some point, to recognise and deal with the risk of bullying incidents and, where necessary, feed into the bullying risk management system. In organisations that have a proper appreciation of their obligations, problems arising out of bullying incidents do not generally occur because the employer has failed to establish appropriate systems and processes. Rather, problems occur because something has gone wrong in the application of a relevant process.

This paper looks at both systems and processes on the one hand, as well as their implementation on the other. At the end of the paper, some real life cases and endeavours are considered to draw on some practical observations, to illustrate what can go wrong and why, particularly in the implementation of relevant systems and processes more so than in their establishment.

While each of the states and territories have their own regulatory systems applicable to workplace bullying or 'harassment', this paper is based on the law in Queensland.

What is workplace harassment?

A person is subjected to workplace harassment if they are subjected to repeated behaviour (other than behaviour amounting to sexual harassment) by a person, including the person's employer, co-worker or a group of co-workers, that:

• is unwelcome and unsolicited;
• the person considers to be offensive, intimidating, humiliating or threatening; and
• a reasonable person would consider being offensive, intimidating, humiliating or threatening.

Workplace harassment does not include reasonable management action taken in a reasonable way by a person's employer in connection with their employment².

This definition is taken from Prevention of Workplace Harassment Code of Practice 2004 (the Code)³. The Code has statutory force in Queensland, as subordinate legislation, under the Workplace Health and Safety Act 1995 (Qld) (WHSA)⁴. It is intended to cover a wide range of behaviour that can have an adverse impact on the workplace health and safety of workers and other people.

Similar, but not identical, definitions have been adopted, in other Australian jurisdictions⁵.

Behaviour is considered repeated if an established pattern can be identified. It does not have to involve the same type of behaviour, but may involve a series of diverse incidents such as, verbal abuse, unreasonable threats of dismissal and sabotage of a person's work.

While a single incident of harassing type behaviour is not workplace harassment for the purpose of the Code, single incidents should not be ignored or condoned. Proper intervention following a single incident may stop the behaviour becoming workplace harassment in the future.

Examples

Harassing behaviours can range from subtle intimidation to more obvious, aggressive tactics, such as:

• abusing a person loudly, usually when others are present;

• repeated threats of dismissal or severe punishment for no reason;
• constant ridicule and being put down;
• leaving offensive messages by email or telephone (including by SMS);
• sabotaging a person's work by, for example, deliberately withholding or supplying incorrect information, hiding documents or equipment, not passing on messages and getting a person into trouble in other ways;
• maliciously excluding or isolating a person from workplace activities;
• persistent and unjustified criticisms, often about petty, irrelevant or insignificant matters;
• humiliating a person through gestures, sarcasm, criticism and insults, often in front of customers, management or other workers; or
• spreading gossip or false, malicious rumours about a person with an intent to cause the person harm⁶.

There will always be differences of opinion, conflicts and problems between workers. Not all of these will amount to workplace harassment. However, where there is repeated behaviour that is unwelcome and unsolicited and it offends, intimidates, humiliates or threatens a person then, as an employer, you have a situation of workplace harassment and action must be taken to stop the behaviour.

When is harassment likely to occur?

While all employers need to actively consider and seek to manage the risk of workplace harassment occurring in their workplace, some situations call for closer management than others. "Special risk" situations identified by the Code, in which the prospect for workplace harassment to occur is aggravated, include:

• organisational change eg in reporting and supervision structures, change in ownership of an employing entity, workplace re-organisation or introduction of new technology;
• where there is a climate or culture of poor workplace relationships or ineffective organisational communication; and
• where there is a culture of condonation of risky activity such as, practical jokes or initiation practices for new workers⁷.

One should add to this any other situation in which workers are exposed to higher-than-usual levels of stress, in which the limits of human tolerance are tested beyond typical levels. In these circumstances relationships between people in the workplace, at all levels and across levels, are liable to be tried, increasing the risk of behaviour that might amount to harassment and the risk of complaints of harassment.

The 'global financial crisis' might contribute, both to the risk of bullying incidents occurring, and also to the risk of adverse consequences from such incidents.

It does not take too much imagination, for example, to picture a scenario where a manager consistently threatens to terminate the employment of a worker – for whatever reason – directly or indirectly preying upon their insecurities brought about by the instability of the labour market. In the not too recent past workers on the receiving end of regular criticism had the opportunity, in a strong economy, to vote with their feet and move on to alternative employment. That safety valve is not as prevalent as it used to be. This has to increase, in the example just given, the risk of a stress type injury occurring, and several of the other risk scenarios discussed below.

At a less insidious level, in the current economic climate more employers are taking a closer look at the performance of 'weaker' workers, with a view to terminating, upon performance grounds, those whose contributions are less meaningful than others. Again, with a greater chance of personal insecurities arising out of a weakening economy and tightening labour market, there is a risk that workers targeted in performance management programs will allege that their treatment amounts to bullying. Those allegations could manifest themselves in a number of ways, including through personal injury in the nature of a stress/anxiety/depression type reaction.

Why bother with bullying?

Potential legal liability The focus of this paper is on the workplace health and safety risks of workplace harassment. However, it is important to realise that, when workplace harassment occurs, an employer is at significant legal risk from a number of other sources.

Causes of action and potential areas of exposure include:

• claims for damages for breach of contract, negligence or breach of statutory duties;
• increased workers compensation claims;
• claims for compensation for sexual harassment, unlawful discrimination or other conduct prohibited by discrimination legislation including, eg vilification ⁸;
• claims for relief from unfair dismissal (particularly claims based upon alleged constructive dismissal);
• criminal prosecution and civil liability for criminal behaviour eg, for assault; and
• vicarious liability for employers eg liability of employers for the conduct of their workers (including both employees and contract workers).

The last section of this paper contains a discussion of relevant case examples.

Impacts on victims

Aside from these legal risks, workplace harassment can have a significant negative impact on both employees and the business itself.

Employees subject to workplace harassment may suffer, for example, from:

• high levels of distress, impaired ability to make decisions and poor concentration;
• loss of self-confidence and self-esteem;
• feelings of social isolation at work;
• panic attacks, anxiety disorders, depression and
  deteriorating relationships with family and friends;
• reduced output and performance, incapacity to work, loss of employment; and
• sleep disturbances, such as insomnia or severe tiredness⁹.

Impacts on business

Workplace harassment can also have significant costs for a business and can lead to:

• a breakdown of teams and individual relationships;
• poor worker health;
• reduced efficiency, productivity and profitability;
• bad publicity and poor public image – becoming known as a difficult workplace environment;
• increased absenteeism and staff turnover;
• poor moral and erosion of worker loyalty and commitment;
• increased costs associated with councilors, employee assistance, mediation, recruitment and training of the workers; and
• increased legal costs and workers compensation claims¹⁰.

Therefore, it makes good business sense to ensure workplace harassment is prevented or minimised.

The legal framework

Obligations The WHSA imposes health and safety obligations on various people to ensure workplace health and safety. A person may owe workplace health and safety obligations in more than one capacity.

A person who conducts a business or undertaking has an obligation to ensure their workplace health and safety, and that of their workers and any other person, is not affected by the conduct of the business or undertaking. The obligation is discharged if the person, each of their workers and any other persons are not exposed to risks to their health and safety¹¹.

There are also a number of other people who have workplace health and safety obligations under the WHSA, including workers, people in control of workplaces, principal contractors, designers, manufacturers and suppliers of plant, suppliers and manufacturers of substances for use in a workplace, erectors and installers of plant, and designers of structures used in workplaces and owners of plant ¹².

Workers in particular are obliged:

• to comply with the instructions given for workplace health and safety by an employer;
• to use personal protective equipment if it is provided by the employer and the worker is properly instructed in its use;
• not to willfully or recklessly interfere with or misuse anything provided for workplace health and safety;
• not to willfully place at risk the workplace health and safety of any person at the workplace; and
• not to willfully injure themselves¹³.

These obligations clearly require employees not to engage in workplace harassment or put themselves in a situation where they may be harassed.

It is important to keep in mind that failure to discharge obligations imposed by the Act can give rise to criminal (as well as civil) liability. Penalties upon conviction can extend to both monetary penalties and terms of imprisonment.

Employees can be individually prosecuted for breach of these obligations. As an example of a situation in which employees were individually prosecuted for behaviour in a workplace amounting to bullying, see the discussion below of the decision in Inspector Gregory Maddaford v. MA Coleman Joinery (NSW) Pty Ltd.

In July 2004, a radio announcer employed by Radio Ballarat was personally prosecuted, convicted and fined $10,000 by the Victorian Magistrates' Court for the offence, under Victorian OH&S legislation, of failing to take reasonable care and willfully placing at risk the health and safety of other employees in his workplace. The prosecution was based upon a course of sustained verbal abuse and bullying of his fellow employees over a period of 3 years. (The employer was, in respect of the same events, separately convicted and fined $50,000)¹⁴.

More recently, in December 2008, two Victorian workers were convicted and fined $5,000 each, also for offences against the Victorian OH&S legislation, after setting alight a new apprentice, leaving him with serious burns¹⁵.

Discharging obligations

A person who has a workplace health and safety must discharge that obligation¹⁶.

If a regulation made under the WHSA prescribes a way of preventing or minimising exposure to a risk, a person discharges their obligations only by following that prescribed way¹⁷.

If a code of practice, such as the Prevention of Workplace Harassment Code of Practice 2004, states a way of managing exposure to a risk, a person discharges their obligations for exposure to the risk only by:

• adopting and following a stated way that manages exposure to the risk; or
• doing all of the following:
• • adopting and following another way that gives the same level of protection against the risk;
  • taking reasonable precautions; and
  • exercising proper diligence¹⁸.

The risk management process – the '5 pillars'

To properly manage exposure to risks, the WHSA provides that a person must:

• identify hazards;
• assess risks that may result because of the hazards;
• decide on appropriate control methods to prevent or minimise the level of risks;
• implement control measures (the order in which control measures should be considered are included in the WHSA ¹⁹); and
• monitor and review the effectiveness of the measures²⁰.

Workplace harassment is clearly capable of affecting the workplace health and safety of workers, either physically or psychologically. Therefore, to discharge its workplace health and safety obligations an employer must put strategies in place to minimise or eliminate exposure to the risk of workplace harassment.

Defences and penalties

If a person does not discharge their workplace health and safety obligations they are in breach of the WHSA and may be prosecuted for a criminal offence.

Penalties for breach of the WHSA are significant, including fines for corporate employers up to $1,000,000 and up to three years imprisonment for individuals²¹.

To defend a prosecution for breach of workplace health and safety obligations, a person must prove:

• if a regulation has been made about the way to prevent or minimise exposure to a risk – that they have followed the way prescribed in the regulation to prevent the contravention; and
• if a code of practice has been made stating a way to manage exposure to risk – the person:
• • adopted and followed a stated way to prevent the contravention; or
  • adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention²².

It is also a defence for a person to prove that the commission of an offence was due to causes over which they had no control²³.

Therefore, employers should comply with the Code in order to manage the exposure of workers and other people to the risk of workplace harassment. If they do so, not only will the risk of relevant misbehaviour be diminished, if an incident does occur, the employer and its officers will have a significantly better chance of defending a prosecution for breach of relevant obligations under the WHSA, or, of avoiding prosecution altogether.

If an employer has not properly observed the Code – and non-compliance is not unlawful per se – they should take reasonable precautions and exercise proper diligence to ensure that exposure to the risk of workplace health and safety is prevented or minimised.

Executive officers

In relation to corporate employers, executive officers of the employer have an express obligation under the WHSA to ensure that the employer complies with the Act.

If a corporate employer commits an offence under the Act, so too does every executive officer associated with it, being the offence of "failing to ensure that the corporation complies with" the provision under which the principal offence was committed. In the event of conviction, an executive officer is liable to the same penalties which would have applied to a natural person offender against the provision in question.

The term "executive officer" is defined by WHSA very broadly to mean "a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer". The definition has the potential to capture not only company board members, but also managerial staff by whatever name called.

Prevention of Workplace Harassment Code of Practice 2004

The Code makes the obvious point that workplace harassment can occur in any workplace²⁴, although the risk profile of workplaces is likely to vary according to their type. Employers should not assume that a workplace is free of harassment just because there are no obvious signs of it. Workplace harassment is often subtle or hidden, making it difficult to detect in the workplace. Workers may also be reluctant to report harassment because they fear retaliation from the harasser, believe they will be labelled as weak or that no one will act on the problem.

Risk management

It is important that employers apply a complete risk management process to prevent or control exposure to the risk of workplace harassment. Doing so will maximise:

• the prospects of preventing incidents of harassment occurring, and;
• the employer's prospects of successfully defending proceedings, including criminal prosecution under OH&S legislation, if relevant incidents occur.

The Code provides a template for the management of exposure to the risks of death, injury or illness created by the prospect of workplace harassment.

That template is built around the 5 core elements of risk management provided for in the WHSA (see 'The risk management process – the '5 pillars'')²⁵.

Consultation

Under the WHSA some consultation arrangements are mandatory²⁶, and the Code encourages consultation with relevant stakeholders in the risk management process²⁷.

Employers should consult with workers, workplace health and safety officers and/or committees throughout all stages of the risk management process, as that will help employers to:

• increase awareness about workplace harassment and promote open communication about the issue;
• identify the hazards and assess if workplace harassment is a problem;
• determine appropriate control measures;
• support acceptance and commitment to any control measures implemented; and
• determine the effectiveness of the control measures.

Identification of hazards

According to the Code, hazards that may cause or contribute to workplace harassment can be identified through:

• personal observation of workplace behaviours;
• discussions with workers, including managers and supervisors;
• anonymous surveys;
• interviews with workers who leave (exit interviews); and
• analysis of human resource statistics, for example, relating to absenteeism and staff turnover, use of employee counseling services, workers leaving an organisation reporting dissatisfaction with working relationships, workers becoming withdrawn and isolated and poor worker morale and erosion of loyalty and commitment.

Risk assessment

Once hazards have been identified an employer needs to assess the risks (likelihood and consequences) of the hazards causing death, injury or illness to a person at the workplace. The Code identifies a number of specific factors for employers to consider when conducting an assessment of the risk of workplace harassment occurring in their workplace. See 'When is harassment likely to occur?'

Records should be kept of the risk assessment as it provides evidence of whether the employer has met part of its workplace health and safety obligations and can help in undertaking future risk assessments²⁸.

Control measures ²⁹

Where workplace harassment has been identified and assessed to be a risk, employers must decide on and put in place control measures to prevent or control the risk. Preventative measures should be aimed at the source of the risk and may include a broad organisational response as well as more targeted initiatives that address symptoms in a specific area.

A strategy aimed at preventing or controlling exposure to the risk of workplace harassment should include:

• a workplace harassment prevention policy;
• a complaint handling system;
• a review of human resource systems; and
• training and education.

No single control measure will effectively prevent workplace harassment from occurring. It is important that different control measures are used together, as part of a broader strategy to prevent or control exposure to the risk of workplace health and safety.

Workplace harassment prevention policy ³⁰

A workplace harassment prevention policy should outline the employer's commitment to address harassment and expectations regarding appropriate workplace behaviour. It may be a stand alone policy or form part of an existing health and safety policy or code of conduct for all workers.

An effective workplace harassment prevention policy should include:

• A value statement: state the employer's commitment to providing workers and other people with a healthy and safe work environment, free from workplace harassment.
• A definition of workplace harassment: refer to the Code definition of workplace harassment and provide examples of harassing behaviour. Clearly outline what is and is not considered to be workplace harassment, with examples.
• The potential impact of workplace harassment: outline the health and safety risks to people and the business from workplace harassment.
• Encourage reporting of workplace harassment: encourage workers who experience workplace harassment to report it.
• Obligations of employers, workers and other persons: detail the obligations of each of these groups of people under the WHSA.
• Workplace strategies to prevent or control workplace harassment: outline the control measures that the workplace will implement to prevent or control exposure to the risk of workplace harassment.
• A commitment to investigate allegations promptly: state that any allegations of workplace harassment will be treated seriously and investigated promptly and impartially.
• Consequences of breach of policy: outline the disciplinary action that will be taken against the person who harasses a worker, victimises someone who has made a complaint or makes malicious, frivolous or vexatious complaints.
• Support services: provide details of the assistance or support of available to workers to manage and resolve workplace harassment complaints.
• Management commitment: have the employer/chief executive/management sign and date the policy to demonstrate their commitment.
• Policy review: include details of when the policy will be reviewed.

A workplace harassment policy is also more likely to be effective if you gain workers' support and commitment to the policy by:

• developing a policy relevant to the particular workplace, its needs, people and conditions;
• developing the policy in consultation with workers;
• securing the support of the employer/chief executive/management; and
• ensuring the policy is followed and consistently and fairly applied.

Complaint handling system ³¹

A complaint handling system will help ensure consistency towards management of complaints. Informal and formal procedures should be available.

An informal procedure may encourage workers to raise their harassment complaint with an appropriate contact person with a view to its management and resolution in an informal and fair manner.

While an informal resolution process may be effective and prevent further escalation of the issues in some cases, it will not be appropriate in every instance. Therefore, it is important also to have a formal workplace harassment complaint procedure in place. It should include a formal reporting and investigation procedure and a complaint resolution and appeal process. It may be that an existing complaint or grievance procedure may be suitable for workplace harassment complaints, or could be adapted to ensure that it is.

Once a complaint handling system is in place, workers should be encouraged to report allegations of workplace harassment so that immediate action can be taken to address any complaint and provide prompt assistance to the complainant. Workers will be more likely to report allegations of workplace harassment if they believe the complaint handling system can be trusted, action will be taken and fair treatment will be offered to those involved.

Human resources systems ³²

Effective and reasonable performance management processes and open communication systems can also help to prevent or control workplace harassment from occurring. In terms of open communication, workplace harassment is more likely to occur in conditions of secrecy and poor communication. Many forms of workplace harassment, such as the spreading of false and malicious rumours or withholding important information from a worker to their disadvantage, prosper in poorly communicating workplaces.

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