Australia'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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