Addressing workplace bullying and harassment is becoming increasingly important for employers. Employers are liable for bullying occurring at their workplaces. Recent prosecutions arising from delinquent workplace conduct have drawn new focus on to these issues and, in response to various surveys highlighting the costs associated with workplace bullying, government authorities are becoming more eager to target perpetrators. To avoid adverse financial and other consequences, employers should concentrate on risk minimisation within their organisations.
A recurring issue with workplace bullying is the difficulty in constructing an appropriate definition. There is no legislative definition.
A useful definition, developed by the New South Wales Law Society, is “behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour”. The suggestion that bullying may include psychological behaviour is particularly important, especially when considering that the average workers’ compensation claim cost for such conduct is significantly higher than for claims arising from physical behaviour ($41,185, as compared to $23,441).
Some examples of conduct that may fit the description of bullying include:
- Verbal abuse
- Excluding or isolating employees
- Harassment
- Intimidation
- Assigning employees meaningless tasks unrelated to their job
- Giving employees impossible assignments
- Deliberately changing work rosters to inconvenience particular employees
- Deliberately withholding information vital for effective work performance
Bullying most commonly takes the form of psychological harassment or verbal abuse from a fellow worker or manager, and is most likely to be directed at minority groups such as indigenous staff, those with a disability, employees earning lower salaries, women and older age groups.
There is no Australian legislation that expressly prohibits “workplace bullying”. Such conduct is however unlawful and victims may pursue claims under occupational health and safety laws, discrimination statutes and other industrial relations legislation. Bullying allegations most commonly arise within the realm of occupational health and safety (OHS). Under OHS statutes, employers have a general duty to provide and maintain, so far as is practicable, a working environment that is safe and without risks to the health (including the psychological health) of employees. Employers that do not take the proper steps to prevent workplace bullying are failing to meet this duty. The consequences arising from OHS prosecutions can be significant, particularly having regard to large penalties for breaches of OHS laws.
Indeed, for many organisations, it is the associated costs that actually trigger action to prevent and manage workplace bullying. Workplace bullying claims are now in the order of $60 million per year in Victoria alone. Perhaps this figure becomes less surprising when considering that up to half of the Australian workforce claims to have been verbally abused or physically assaulted by a colleague. Of course, workers’ compensation expenses represent only a fraction of the true cost of workplace bullying. Hidden costs include: the loss of productivity, negative publicity and staff turnover costs.
There are a number of steps employers can take to prevent workplace bullying from occurring. As an aid to prevention and a means to avoiding litigation, employers ought to undertake the following six-stage process:
- Create awareness of the issue amongst employees, particularly those in management and supervisory roles.
- Develop a written policy that specifically sets out the organisation’s position on workplace bullying and how complaints will be addressed.
- Provide training: ensure that employees are provided with the information, instruction and supervision they need to perform their job safely and without risk to health.
- Identify risk factors: indicators that bullying may be occurring in a workplace include a high staff turnover, high levels of absenteeism or a sudden increase in workplace complaints. Organisations that employ “at risk” employees should also be especially aware of the possibility of workplace bullying occurring “behind the scenes”. (“At risk” employees are generally those from minority groups as outlined above.)
Encourage reporting: employers should ensure that employees understand that complaints will be taken seriously and, as far as practicable and reasonable in the circumstances, will be treated as confidential. Without the reports of employees, it is often that the employer will not be aware that bullying is occurring in their workplace.
Develop bullying resolution procedures, which should be informed by the size and structure of the organisation.
Bullying is gaining heightened focus as a serious workplace issue and one that has attracted both media and government attention. The various state and territory Workcover authorities have been particularly proactive in raising awareness in this sphere. (For further information in this regard, consider reviewing NSW Workcover’s Workplace Violence Fact Sheets and the Victorian Workcover Authority’s Guidance Notes on the Prevention of Bullying and Violence at Work. The VWA has also been running a series of workshops that are specifically aimed at preventing workplace bullying.)
For further information, please contact Louise Houlihan on (03) 9608 2273 or
l.houlihan@cornwalls.com.au or Jane Lawler on (03) 9608 2109 or
j.lawler@cornwalls.com.au
