Claims by employees of workplace bullying are becoming more and more common and employers need to ensure that they have the appropriate systems in place to deal with such complaints. More importantly, employers should seek to prevent such claims from arising by ensuring that, so far as is reasonably practicable, they create a workplace environment that is free from bullying.
What is bullying?
Workplace bullying is defined differently across the Australian states and territories, but can generally be defined as "repeated behaviour directed at an individual or group that is unreasonable or inappropriate in the circumstances, and creates a risk to an employee's physical or mental health".
Bullying can take many forms, including:
publicly humiliating someone;
verbal abuse that frightens, threatens or intimidates;
spreading gossip or malicious rumours;
isolating someone in the workplace; and
overloading a person with work or not giving them enough work.
In the recent decision of Phillip Slater v Patrick Port Logistics Pty Ltd*, Fair Work Australia (FWA) upheld the dismissal of a Patrick Port Logistics driver who had engaged in what FWA found was bullying behaviour towards another employee. The driver had made abusive and inappropriate comments to another employee, including calling him "a piece of shit," raising his voice, standing closely and pointing his finger at him, and making "unsubstantiated and vexatious" accusations against him. In dismissing the unfair dismissal claim, FWA found that the employer had carried out appropriate investigations before deciding to terminate the employee's employment in accordance with its policies.
What is not bullying?
Bullying has become a buzz term, and the legal concept is often misunderstood. Employers need not fear that they will be prosecuted for reasonable and appropriate management behaviour.
Employers have a legitimate authority to direct employees and to control their work. Managers can of course allocate work, and give fair and reasonable feedback on a worker's performance, even where that feedback is not always glowing. Other examples of legitimate management which will not constitute bullying are:
setting reasonable performance goals and deadlines;
identifying underperforming workers for extra training;
allocating work tasks and shifts according to business needs;
deciding not to promote an employee; and
confronting an employee about their inappropriate behaviour.
In one recent decision*, FWA found that while a manager had acted angrily and unprofessionally on separate occasions, and that while her communication style was at times inappropriate, her behaviour did not constitute bullying.
How can it be prevented?
Workplace bullying is covered by occupational health and safety legislation, which imposes a general obligation on employers to, so far as is reasonably practicable, provide and maintain for employees a working environment that is safe and without risks to health.
If an employee engages in bullying behaviour towards a fellow employee, be it a subordinate, a co-worker, or even a manager, then the employer can be prosecuted by the relevant state regulator for failing to provide a safe place of work.
This places employers under a positive obligation to be pro-active in their approach to eradicate bullying. Accordingly, employers should ensure that they:
have an appropriate workplace anti-bullying policy, setting out standards of behaviour and making it clear that inappropriate behaviour will not be tolerated;
provide training to their employees to enable them to understand their workplace policies and procedures, as well as how to effectively deal with and report bullying;
monitor and review their risk control measures, in consultation with workers and health and safety representatives. This may include conducting workplace audits to gain a sense of workplace morale. Such audits can be conducted without a specific complaint.
The consequences of bullying behaviour can be very significant. In addition to the detrimental effect that bullying can have on individual employees and workplace morale, companies can be hit with very significant penalties of up to $3,000,000 for breaches of health and safety laws (the maximum penalties vary from state to state).
Bottom line for employers
There is no doubt that bullying claims are becoming more prevalent. This is partly because many employees did not previously know that the behaviour to which they were being subjected might be unlawful. It is also partly due to the fact that more claims are now being made after an employee has been subjected to a performance management process. Employers need to ensure that they have the right systems in place to, so far as is reasonably practicable, eradicate bullying in the workplace and to manage claims as and when they arise. However, they should also be mindful of what is not bullying and ensuring that they encourage their managers to exercise managerial prerogative where it is fair and reasonable to do so.
2. Oui v Townsville Aboriginal & Torres Strait Islander Corporation Health Services  FWA 2713
Lander & Rogers have partnered with Learning Seat, one of the country’s leading online learning providers, to develop a compliance suite that goes beyond legal text and tick boxes. Instead it educates staff through the most innovative and effective means possible and covers the most up to date legislative requirements of Australian businesses, to comprehensively and proactively arm organisations against the threat of workplace bullying. To find out more visit www.learningseat.com/thesafefiles.