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.
