With all the activity still surrounding the introduction of Modern Awards and the National Employment Standards under Fair Work, employers and HR professionals should be careful not to drop the ball with their other legal obligations. Workplace bullying is an area of Occupational Health & Safety law that requires constant attention.
A case in point
In April this year, a South Australian court ordered the demotion of a senior firefighting officer for the systemic bullying and harassment of several members of staff. The officer was charged with breaching the code of conduct for firefighters, as outlined in South Australian legislation.
The fire-fighting officer was said to have regularly referred to female firefighters as ‘oxygen thieving wastes of space’, implied that their bottoms were too wide to fit through doors, frequently called other firefighters ‘useless f—ks’ and threatened harm to any staff member who reported him to management.
The officer seemed to believe his comments could not amount to bullying as they were made in jest with a lighthearted expression. However, the court did not accept this, particularly considering his position as supervisor, with responsibility given to him to ensure Fire Service policies and codes of conduct were vigilantly followed.
The Court also raised concern about the lack of action from management and the harassment officer all of whom had allowed the situation to reach “this sorry state” that had “been the case for so long”. The officer was demoted and barred from applying for promotion for the next two years. This case is just one of many examples of how bullying can surface in the workplace.
Bullying defined
It’s important that both managers and employees understand what constitutes bullying. The officer in the case above strongly denied that his actions could amount to bullying or harassment, given that he thought they were just lighthearted comments. Here is a useful definition, and you can judge for yourself. Workplace bullying is repeated, less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. The emphasis is on the repetition of the conduct, with the behaviour being unwelcome, unsolicited and usually not reciprocated.
Behaviours that constitute bullying include behaviour that intimidates, offends, degrades or humiliates a worker or would reasonably be expected to do so. Such conduct may include:
- Physical – for example, hitting or inappropriate touching.
- Verbal – for example, insults or taunts.
- Psychological – for example, public criticism or negative body language.
- Social – for example, shutting people out of conversations or social events.
In the case of the firefighter, his comments were repeated on several occasions and resulted in the resignation of a female colleague, who was too afraid to make any formal complaints. It certainly amounted to bullying.
The responsibilities
So what are the responsibilities of an employer to its staff to protect them from workplace bullying? Although employers in all states and territories have OHS obligations to prevent workplace bullying, employers in New South Wales and Queensland face stricter OHS obligations than the other states and territories, and have a basic duty to ‘ensure the health, safety and welfare at work’ of its employees (including from psychological injury).
Employees themselves also have duties under OHS laws to take reasonable care for the health and safety of people at their workplace. These duties, and the importance of being proactive when it comes to workplace bullying, was highlighted in another case earlier this year where a young female employee committed suicide following repeated bullying and harassment by co-workers at a Victorian café. The three co-workers were fined $45,000, $30,000 and $10,000 respectively and the owner and owner’s company fined $250,000. The fines would have been doubled had the accused not pleaded guilty.
The effect of the Fair Work Act
Adverse action under the Fair Work Act now provides another avenue for employees to claim against an employer. As bullying may trigger the new adverse action provisions in the two ways set out below, and with uncapped compensation and fines of up to $33,000 potential remedies, employers need to step up and take action now rather than wait for claims to flow in.
- Rights for the victim Employees have workplace rights entitling them to protection under OHS laws and to complain of bullying in the workplace. Failure to do anything to follow up a complaint or otherwise victimising or discriminating against a complainant may constitute adverse action under the Fair Work Act 2009 (Cth) and expose an employer to liability.
- Rights for the bully A bully also has workplace rights. They are entitled to the benefit of their contract of employment and associated termination or disciplinary procedures. Failing to follow due process and investigation procedures but still disciplining the employee or terminating their employment may constitute adverse action and, again, leave employers open to liability.
The ripple effect
Workplace bullying has a ripple effect in an organisation and undermines the fabric of the workforce. A workplace that tolerates bullying – or does nothing to stop it – erodes staff morale, loyalty and commitment. If you don’t care about your employees, why should they care about you?
Without the commitment of staff, productivity levels inevitably fall, as does customer service and profitability. Bullying costs Australian employers billions of dollars every year due to lost time from absenteeism and injury, high staff turnover, increased workers’ compensation claims (and the increased insurance premiums that go with it) and litigation costs.
Bullying can also have a severe impact on your organisation’s reputation. Employees can be your best brand advocates, or one of your greatest reputation risks. If people are talking about bullying in your workplace, it will be harder to attract talent, and could result in unfavourable public attention. Would you want to work for the Victoria café discussed above?
[Next: How to prevent bullying]
Prevention is better than cure
Having eyes in every corner of your workplace is just not possible, so it’s not always easy to prevent workplace bullying. And these days, workplace bullying isn’t even just confined to the office. It can now continue into home time, with social media and mobile technology allowing bullying ‘on the go’. A Facebook post or tweet on Twitter while waiting for the bus or train after work is not necessarily outside the scope of laws relating to bullying.
However, there are a few steps that employers can take to reduce the risk of workplace bullying occurring, and reducing the chance of adverse action claims and breaches of OHS laws.
Five tips for identifying bullying in the workplace
1. Be clear Ensure that you have detailed bullying, discrimination and harassment policies in place, including steps to be taken where bullying is suspected. Ensure that social media and modern means of communication (e.g. iPhones, iPads and BlackBerrys) are addressed in these policies.
2. Have an open door Make sure your employees are comfortable reporting bullying to their managers, and that they have other avenues if the manager is somehow involved in the complaint.
3. Be proactive Understand that not all bullying behaviour is obvious or initially destructive, what could appear quite harmless today could degenerate into serious cases of bullying. Early intervention is the best case scenario.
4. Avoid mere paper systems If you’ve got a policy, follow it and enforce it.
5. Don’t look the other way Failing to act where bullying is suspected, even without a formal complaint, can open your workplace up to liability under OHS and industrial laws.
–Ben Urry is an employment lawyer with Kemp Strang.
