Australian Employment Law: Workplace Bullying

Main Digest

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.

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The Law Society of NSW has offered the following definition of bullying:

"Unreasonable and inappropriate workplace behavior includes bullying, which comprises behavior which intimidates, offends, degrades, insults or humiliates an employee possibly in front of co-workers, clients or customers and which includes physical or psychological behavior."

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 behavior 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 Behavior

Bullying behavior 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 behavior directed against someone including their property
• Unreasonable teasing
• All forms of intimidating behavior including physical assault or threats
• Marginalizing or ignoring someone
• Any form of demeaning behavior 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.

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.

Action

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.

Claiming for Damages

The Occupational Health and Safety Act 2000 is perhaps the most direct basis upon which to claim damages for bullying in a New South Wales workplace. The first stated goal in s 3 of this Act is precisely concerned with securing and promoting the "health, safety and welfare" of people in the workplace. In s8 of the Act, the duties of an employer are listed more specifically. Among other things, an employer is responsible for "ensuring that systems of work and the working environment of the employees are safe and without risk to health".

In the 2004 case of Inspector Maddaford v Coleman, the New South Wales Industrial Relations Commission confirmed an earlier decision that a timber joinery company had breached its duty under s8 of the Occupational Health and Safety Act 2000 by failing to ensure a healthy and safe workplace. In this case, a 16 year old factory worker was the subject of violent bullying - he was wrapped in plastic by his co-workers, rolled around on a trolley and covered in sawdust and glue. What is interesting here is that the director and factory foreman were found to be personally liable under s 26 of the Act (liability of managers and directors), even though they were not directly involved in the incident. Indeed, if the risk of bullying is foreseeable, employers can be held liable. In other words, they do not only have to react to bullying, they also need to be proactive in eliminating it so that they ensure a healthy and safe working environment.

So the claim for bullying succeeded... but what were the damages?

When the case was first heard, the company was fined $24,000 and the director and the factory foreman were personally fined $1000 each. But, in the second hearing, it was found that the penalties imposed were too low due to the seriousness of the matter and the need for deterrence. In other words, because bullying is often hidden or not talked about, the court felt that deterring bullying in the future was a significant factor in determining the penalty. Ultimately, the personal fines were bumped up to $9,000 for the director and $12,000 for the factory foreman, who was directly responsible for supervising employers. Obviously, the courts have realized that bullying is not a matter to be taken lightly.

Other avenues to claim for damages:

In some cases, bullying in the workplace may become so unbearable that a person is forced to resign from their job. Where this occurs, it may be possible for a person to claim for damages under the Industrial Relations Act 1996 (NSW). This means that because a personal is effectively forced to resign from their job, an unfair dismissal claim arises and a person may be able to seek compensation. In Dillon v Arnotts Biscuits, the court found that the incessant bullying of a factory worker by her boss had led to "constructive dismissal". She recommenced her work and was reimbursed for her lost income.

Bullying in the workplace may also create a claim for damages if it constitutes a form of discrimination. In New South Wales, it is against the law to bully or harass someone on the basis of their race, sex, pregnancy, marital status, religious beliefs, sexuality or disability. This idea is captured in the Anti-Discrimination Act 1977 (NSW), but there are also a number of Commonwealth Acts which prohibit discrimination in (and out) of the workplace.

From the boardroom to the courtroom:

Bullying is bad for the workplace because it reduces efficiency, motivation and self-confidence, as well as increasing stress, anxiety and mental health days. But nowadays, bullying in the workplace is also a potential lawsuit. It is apparent in the law and in the courtroom that bullying can give rise to claims for damages in New South Wales.

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