Brodie’s Law ineffective in dealing with workplace bullying

by Miriam Bell12 Sep 2012

Brodie’s Law ineffective in dealing with workplace bullyingAustralia's legal and policy approach to workplace bullying has come under attack from a prominent employment lawyer who described it as “a failure for employees and employers alike”.

Those affected by workplace bullying need better, earlier protection than symbolic legislation like Brodie’s Law* – which was really a stalking law and useless in about 95% of cases, Josh Bornstein from Maurice Blackburn Lawyers told this week’s LegalWise forum. “Criminal law is not a workable model… Workplace bullying should be addressed by national workplace legislation and give victims access to a user friendly, proactive system which emphasises early intervention.”

Many employees wrongly assumed that workplace bullying was unlawful and actionable, he said. “In fact, contrary to popular belief and despite the apparent scale of the phenomenon, Australia does not have a law explicitly dealing with workplace bullying.”

The criminalisation of workplace bullying was not a good idea anyway, Bornstein continued.

“Criminal law should only intrude into the workplace in extreme situations. Most bullying cases are not criminal matters. The criminalisation of workplace bullying is a misguided and ineffective way to address workplace bullying and provide victims with remedies.”

Sensible legislative and policy reform on workplace bullying would involve removing it from its current legal and cultural designation as an OHS issue, he said. “Confining workplace bullying to the realms of OHS hasn't worked and won't work. Law reform must allow victims to take a complaint to a tribunal or a court well before the situation has escalated to the point of damage to an employee's health.”

Early intervention was often critical in dealing with workplace bullying – so amending the Fair Work Act to allow this to occur would be a step in the right direction, Bornstein said.

“An investment in an educational campaign about workplace bullying, together with legal reform, would reap a huge dividend by saving millions in lost productivity, healthcare costs and social welfare payments. It would also enhance managerial skills and improve the quality of our work environment.”

Key HR takeaway:

Implementing codes of conduct and policies was not the solution, according to Bornstein: “Employers actually need to manage workplace culture, and bridge the often significant gulf between culture and workplace policy with sustained hard work and strong management.”

 

*Brodie’s Law was prompted by the 2006 suicide of 19-year-old Melbourne waitress Brodie Panlock, who was relentlessly bullied during work hours.

 

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COMMENTS

  • by Michael C 12/09/2012 12:36:09 PM

    I agree that Brodies law was a knee jerk response but am I reading this wrong. The article says on one hand that the criminalisation of bullying was not a good idea and that is should be removed from OHS realms, but then it goes on to say that complaints should be taken to a tribunal or a court. So I am not sure what the actual solution proposed by Bornstein is.

  • by Stuart King 12/09/2012 1:36:25 PM

    The creation of a criminal offence for serious cases of bullying is only part of the solution. I went on public record at the time of Brodie's death and when legislation in Victoria was created to articulate that. What I also said was that we needed greater understanding about the risk factors associated with workplace bullying. My commitment to that outcome led me to our private research of 5000 Australians in every State and Territory who were in work. The results were astonishing..... and identified the risk factors that I was keen to find. One such finding relates to the 'tournaments' that our structures in organisations create. Pay for performance is one such tournament which may lead to bullying behaviour. I recently attended a conference in Copenhagen where the definition of workplace bullying was discussed. We would benefit from a legislated definition in Australia.........

  • by Bernie Althofer 13/09/2012 10:20:02 AM

    There may well be an argument for the criminal prosecution of alleged bullies in certain cases. It might also be the case that with the changes that are occurring across Australia in relation to work health and safety, prosecutions might be instigated for breaches of work health and safety when allegations of bullying are made.

    However, the circumstances of each incident needs to be judged on its merits, and central to actions taken, is the need for the person being targeted to remain in control.

    It also seems that prevention and detection are 'glossed over' to some extent. Whilst organisations may argue that they have good policies and procedures in place, it might also be the case that individuals seek advice external to their organisation, and then decide not to pursue the matter for various reasons e.g. fear of job loss, 'rewards' being given to the alleged bully. Changing workplace cultures that allow transparency of reporting, that provide safe environments for the target and those who might support them, needs to occur.

    It might well be the case that if line managers and supervisors receive more effective training in conflict management (detection and resolution), workplace environments are monitored to control risk factors, and individuals are trained on how to respond to workplace conflict, then there may be an increased chance of reducing the threat of escalation.

    The issue that some organisations might be struggling with is whether or not bullying is a WHS issue or whether it should be dealt with as part of workplace relations. If it is a WHS issue, then it might be open to discussion as to how the matter is reported e.g. breach of work health and safety (and subjected to WHS investigations and penalties etc) or if it is a workplace relations issue, then what is the most effective way of resolving the matter for all concerned e.g. the target, the alleged bully and the organisation.

    Whilst there is confusion about what is and what is not bullying (and reasonable management actions), organisations and individuals will continue to struggle.

    Managing a workplace culture that tolerates bullying to the point of acceptance can be difficult when there is a 'cone of silence' in existence, or individuals are targeted for taking a stance against workplace bullying.

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