By Frank Egan, LAC Lawyers
Workplace bullying has been with us ever since the advent of the Industrial Revolution. Interestingly in New South Wales the Office of Industrial Relations of the NSW Department of Commerce provides scant information about this anti-social workplace behaviour. Research indicates that workplace bullying is widespread and that it is more prevalent that harassment. What is also interesting is that in New South Wales there is no statutory definition of bullying. In point of fact Butterworths Australian Legal Dictionary is also mute on this point.
The Law Society of NSW has offered the following definition of bullying: “Unreasonable and inappropriate workplace behaviour includes bullying, which comprises behaviour which intimidates, offends, degrades, insults or humiliates an employee possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.” Importantly, employees have a duty under Occupational, Health and Safety laws to find out about bullying and take steps to prevent it. Under the NSW Occupational Health and Safety Act 2000 an employer has an obligation to ensure the health, safety and welfare of all employees and this extends to bullying.
Employers also have a duty to take reasonable care for the safety of their employees at work. Essentially bullying is repeated inappropriate behaviour directed against a person by one or a number of other employees in the course of employment which could reasonably be regarded as undermining an individual’s right to dignity at work.
Bullying behaviour is not only restricted to employees but it may involve anyone with whom employees of the business come into contact in the ordinary course of their employment whilst at work. Bullying may be active or passive, direct or indirect, physical or psychological but it does include:
- Unacceptable language and rudeness;
- Coercive behaviour directed against someone including their property;
- Unreasonable teasing;
- All forms of intimidating behaviour including physical assault or threats;
- Marginalising or ignoring someone;
- Any form of demeaning behaviour whether business or personal which serves to denigrate the individual being attacked;
- Abuses of authority.
What is not Bullying
Employers have the right to supervise, direct and control work and they have the responsibility to monitor workflow and gauge performance. They are entitled to set reasonable goals and standards including KPIs and deadlines which have to balanced against the responsibility to look after the health, safety and welfare of their workforce.
The Consequences of Bullying
Different employees react differently. Bullying essentially may result in unwarranted stress, ill health, inability to make decision, incapacity to work, depression, physical injury and more. Wherever bullying occurs there is the potential for legal action. There is a body of law which is developing which suggests that an employee can sue his employer for a breach of an implied duty of trust and confidence. Bullying and harassment seems to fit squarely written this. Employers need to exercise care!
General Legal Requirements
Legislation, Australian Workplace Agreements, Certified Agreements, Industrial Awards and the Common Law cover the field. Primarily Industrial, Occupational Health and Safety and Anti- Discrimination Legislation applies to this area. In the latter bullying may sometimes involve harassment or discrimination where a person unreasonably picks on a personal characteristic such as race, sex, pregnancy, marital status, religious beliefs, disability or age which causes another to feel embarrassed, humiliated, offended or intimidated.
Bullying should never be tolerated under any circumstances. Employers can develop clear workplace guidelines, practices and policies to safeguard everyone. Reducing the risk of exposure to workplace bullying would assist employers to satisfy their general duty of care to protect themselves and their employees.Irrespective whether employer or employee where workplace bullying arises there is a legal exposure and the advice of an experienced employment lawyer needs to be secured.