Bullying

Bullying is a human resource and legal risk. It has OHS, termination, anti-discrimination and, if serious enough, criminal law implications. Employees who resign because they were bullied can possibly lodge constructive dismissal claims. Workers compensation also plays a part, as bullying injuries are usually compensable.

 
HR and legal risk
 
Bullying is a human resource and legal risk. It has OHS, termination, anti-discrimination and, if serious enough, criminal law implications.
 
Employees who resign because they were bullied can possibly lodge constructive dismissal claims.
 
Workers compensation also plays a part, as bullying injuries are usually compensable.
 
Employers need to be cautious about how they deliver criticism concerning work performance. Obviously, employers are entitled to be critical of work performance, but feedback about employees' work has to be constructive.
 
Claims on the increase
 
The problem of workplace bullying is very real, with complaints to the Fair Work Commission increasing.

In addition, specific industries have been identified as high-risk for bullying and violence. Women in the health, community services and retail trade industries have a high likelihood of exposure to violence.

For men, the protective services/security industry, retail trade and hospitality, tourism and travel present a higher risk of exposure to violence.
 
Definitions
 
Workplace bullying is defined in the Fair Work Act 2009 (s789FD) as repeated, unreasonable behaviour by a person or group of people towards one or more workers that creates a risk to their health and safety. This definition has been adopted in national workplace health and safety guidance material. 
 
‘Unreasonable behaviour’ is behaviour that is offensive, humiliating, intimidating, degrading or threatening. It generally includes:
  • Verbal abuse
  • Initiation pranks
  • Excluding or isolating employees
  • Giving a person the majority of an unpleasant or meaningless task
  • Humiliation through sarcasm, or belittling someone’s opinions
  • Constant criticism or insults
  • Spreading misinformation or malicious rumours
  • Setting impossible deadlines
  • Deliberately changing work rosters to inconvenience certain employees
  • Deliberately withholding information or resources, that are vital for effective work performance
  • Manipulating the impression of others to split the work group into taking sides
  • Displaying written or pictorial material which may degrade or offend certain employees.
Workplace bullying can also contribute to loss of productivity, staff turnover, absenteeism, low morale and financial costs for the organisation (e.g. fines, workers compensation). 

Under WHS/OHS laws operating across Australia, businesses, workers and others have duties in relation to the risks to health and safety created by workplace bullying. Additionally, under criminal law in Victoria, people found guilty of serious bullying can be jailed for up to 10 years.  

Model WHS laws

Persons conducting a business or undertaking (PCBUS), officers, workers and others have duties in relation to workplace bullying under the model Work Health and Safety laws developed by Safe Work Australia. 

While there isn’t a workplace bullying code of practice operating in those jurisdictions governed by legislation based on the model laws, Safe Work Australia has produced the following guidance material for meeting their duties in relation to workplace bullying:

Victoria

Under the Occupational Health and Safety Act 2004 (Vic), employers and employees have duties in relation to the risks to health and safety created by workplace bullying. 

Victoria also has Brodie’s Law, which commenced in June 2011. It makes serious bullying a crime punishable by up to 10 years in jail. This was achieved by extending the application of the stalking provisions in the Crime Act 1958 (Vic) to include behaviour that involves serious bullying.

The legislation was named for teenager Brodie Panlock, who committed suicide in 2006 following relentless bullying in her workplace. A subsequent WorkSafe prosecution led to four men being convicted and fined under the Occupational Health and Safety Act 2004 (Vic) in February 2010.

See also: WorkSafe Victoria’s Guide to preventing and responding to workplace bullying

Western Australia

The Occupational Safety and Health Act 1984 (WA) requires employers to ensure so far as is practicable a working environment in which employees are not exposed to hazards including  bullying in the workplace. Meanwhile, employees have a duty not to place the safety and health of others at risk by engaging in bullying or, where they are in a position of authority, to take steps to stop bullying if and when it happens. 

Western Australia has the Code of Practice on Violence, aggression and bullying at work, which provides guidance on meeting the requirements in the Occupational Safety and Health Act 1984 (WA) as well as the Occupational Safety and Health Regulations 1996 (WA) relating to the prevention and management of workplace violence, aggression and bullying. 

See also: WorkSafe WA’s Employer guide to risk management of bullying in the workplaceDealing with bullying at work: A guide for workers and Frequently Asked Questions – Bullying resource
 
Reasonableness
 
Most definitions of bullying include an element of reasonableness. 
 
Worker or manager sensitivity should not be used to measure the prevalence of bullying. An element of reasonableness must be considered.
 
Regardless of how appropriately a supervisor manages employees through a process of continuous improvement, some staff can be left feeling threatened or intimidated. But this doesn’t mean they are being bullied.
 
Reasonableness means bullying has to be repeated and in context. It does not include one-off incidents where a normally subdued employer lost their temper and as a result a worker was offended.
 
Preventative measures
 
The best way to manage bullying is for employers to conduct reviews and audits of situations where bullying might arise, conduct surveys to determine how workers feel, implement policies that made people feel okay about reporting bullying and, most importantly, understand what constitutes bullying.
 
Any form of activity that went toward prevention and developing trust is the key.
 
It is vital for employers to openly commit to a clearly stated procedure that discourages bullying and to follow up complaints seriously.
 
It can be difficult for some employers to confront bullying, but it is their responsibility to deal with every worker in an even-handed manner. Employers must be aware of warning signs, such as any activity that ostracises workers, picks on people's weaknesses and misuses power.
 
'Turning a blind eye' is not a preventative measure. It can impact on an employer's legal liability, so it is necessary to train managers in what to look for and to respond appropriately, she said. Training is especially helpful when new managers enter a firm and when managers rise up the ranks.
 
360-degree feedback mechanisms are a good starting point to help managers become aware of their behaviour, and prevent bullying at a managerial level. Also, key performance indicators that reflect people management goals and not just budgetary goals are important.
 
Competing priorities
 
Employers had a lot of competing priorities and preventative policies can seem time consuming. However, the alternative is time-consuming, detailed investigations into complaints of bullying.
 
Risk factors
 
Potential risk factors for workplace include:
  • style of management/supervision
  • consultation processes
  • job design and work flows
  • performance expectations
  • composition of work force
  • level and nature of training
  • workplace layout
  • behaviour of clients
  • reporting and emergency procedures
  • time of day, and
  • isolation and work location.
 
Risk management
 
Risk management techniques can be applied to workplace bullying, although there can difficulties in identifying control measures. One suggestion is to vary the commonly used ‘Hierarchy of Controls’ by removing the priority structure of the traditional hierarchy.
 
Suggested control measures could include:
  • management/supervision/leadership
  • administrative systems
  • awareness training, policies and procedures
  • induction training to identify bullying behaviour and resolving incidents in industries where bullying is predictable
  • recording of bullying incidents
  • physical barriers, workplace redesign and security systems, and
  • counselling. 
Source: Australian Business Lawyers and WorkplaceInfo
 

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