Bullying and harassment in the workplace

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Bullying and harassment in the workplace

This article is based on a presentation by Therese MacDermott who addressed these issues at an ACCIRT breakfast briefing on 24 October 2001.

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This article is based on a presentation by Therese MacDermott who addressed these issues at an ACCIRTbreakfast briefing on 24 October 2001.


How is bullying and harassment in the workplace relevant?

There are several reasons why the issue of bullying and harassment in the workplace remains an important legal issue for employers.

  1. Despite legal initiatives prohibiting harassment (such as provisions in the Anti-Discrimination Act 1977), harassment is still occurring.
  2. Liability of employers and senior personnel in companies has been extended through case law. This issue will be explained in more detail under Anti-Discrimination Legislation.
  3. Legal avenues other than anti-discrimination legislation have been successfully used to address bullying in the workplace. This is addressed in further detail below.
  4. Awards for damages in harassment and bullying cases have increased in recent years.

Cases:

  • Blenner-Hasset v Murray Goulburn Co-Operative Pty Limited & Ors, County Court Victoria, 10 March 1999 (Common law claim)
    Award of damages approximately $350,000
Legal Avenues
 
  • Anti-Discrimination Legislation
  • Common Law
  • Constructive Dismissal
  • Occupational Health and Safety
  • Workers Compensation
  • Criminal law
Anti-Discrimination Legislation

If harassment in the workplace is based on one of the grounds of discrimination (such as sex, homosexuality, age etc.), the aggrieved person may be able to bring a claim under anti-discrimination legislation. The complainant will need to demonstrate that the harassment resulted in 'less favourable treatment', thus falling within the definition of direct discrimination.

Case:

  • Daniels v Hunter Water Board (1994) EOC 92-626

Sexual harassment and disability harassment are specifically prohibited in anti-discrimination legislation.

Developments

The way in which anti-discrimination legislation and principles of sexual harassment in industrial cases have been used in harassment and bullying cases has developed in recent years, including:

1. A 'new wave' of sexual harassment cases dealing with email and internet pornography.

Cases:

2. Extension of accessory liability.

Cases:

  • Elliott v Nanda & Commonwealth [2000] FCA 418
    The Commonwealth employment service was found to have 'permitted' the harassment of an employer by placing the employee in a workplace where there was a history of harassment complaints made.
  • Rice v Nolan Human rights and Equal Opportunity Commission No. H97/105, 15 December 2000.
    Chairman of Directors was found to have 'permitted' the harassment of the Managing Director because he did not take adequate steps to ensure that harassment was not occurring and did not adequately investigate complaints.

3. Extension of employer's vicarious liability.

Cases:

Common Law

Employees who are subjected to harassment or bullying in the workplace may be able to bring a claim for breach of contract or negligence under common law.

Cases:

  • Blenner-Hassett v Murray Goulburn Co-Operative Pty Limited & Ors County Court Victoria, 10 March 1999.
    An apprentice successfully sued his employer based on negligence and under OHS legislation for bullying and harassment, which occurred during the period of his apprenticeship. This case involved serious and overt bullying.
  • Arnold v MidWestern Radio Limited [1999] EOC 92-965, (1999) EOC 92-970 (on appeal).
    Employee brought a claim based on negligence for the bullying conduct of her manager. The employee had developed a psychological disorder. At first instance the claim was successful. However, on appeal it was found that there was not sufficient evidence to connect the psychological disorder with the harassing conduct.
Constructive Dismissal

Where an employee is harassed or bullied at work and leaves their employment they may be able to bring a claim for constructive dismissal.

Case:

  • Dillon v Arnotts Biscuits Limited, AIRC, 10 September 1998, 180 of 1997
    An employee was successful in a claim for constructive dismissal where she was able to show that the bullying and harassing conduct of a co-worker left her no choice but to resign.
Occupational Health and Safety

Under the new Occupational Health and Safety Act, employers are required to take a pro-active approach to risk management, including consultation with employees. A workplace culture that allows harassment and bullying to occur may be an occupational health and safety hazard and consequently may require action to address the risk.

Workers Compensation

Employers may be liable for injuries to workers as a result of bullying and harassment in the workplace.

Criminal law

The Law and Justice Legislation Amendment (Application of the Criminal Code) Act 2001 amends federal anti-discrimination laws to enable corporations to be held criminally responsible for federal offences that have arisen from the corporate culture of the workplace. The amendments come into effect in May of 2001.

Other references

    For further information contact: nicole.willmott@ablawyers.com.au 

     

     

     
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