Employers must take bullying seriously or risk negligence claims

by Victoria Bruce31 Mar 2016
Employers who fail to properly investigate claims of employee bullying could face costly negligence claims and reputational damage.

Bullying in the workplace can have serious consequences for an employer, says Holman Webb Senior Associate, Ethan Brawn.

These consequences could take the form of a worker’s compensation claim or common law claim, both which will have a negative impact on a business’s insurance premiums, Brawn told HC Online.

“In recent years we have noticed an increase in negligence claims arising out of allegations of workplace bullying,” Brawn says.

“Across Australia, governments have sought to limit employees’ entitlements to workers’ compensation. This has seen more marginal claims brought in negligence as employees’ seek to maximise their financial outcomes.”

However, Brawn says that in the context of claims for negligence, there are few authorities providing guidance as to what conduct amounts to bullying.

To succeed in a negligence claim, a plaintiff must establish that they were bullied and that the employer was negligent in breaching its duty of care towards the employee.

“When assessing whether a risk of injury from bullying is reasonably foreseeable the court must look the risk posed to an individual employee,” Brawn says.

“An argument stating that it is well known that bullying may cause an injury and therefore an employer owes a broad duty of care to all employees to guard against the risks associated with bullying is unlikely to be sufficient,” he says.

“A plaintiff will need to establish that the employer should have known that they were at risk of a psychological injury to establish a duty of care.”

Employees may use allegations of bullying to lay the foundations of a general protections claim under the Fair Work Act, Brawn says, adding that the Fair Work Act can also be utilised to obtain a “stop bullying order”. 

“Unfortunately most employers will find that they do not have insurance coverage for these types of claims,” he says.

As bullying is currently a hot topic in workplace law, claims can attract a lot of unwanted attention, resulting in irreparable reputational damage for an employer.

“The often salacious allegations that underpin many bullying claims make these stories attractive to the media and the public,” Brawn says.

“This can result in reputational damage for those involved and see customers of the business seek to disassociate themselves from that business lest they be tarred with the same brush.”

If bullying is related to race, sex, or some other ground of discrimination, employers could also see themselves on the wrong side of anti-discrimination legislation and face costly claims.

Brawn’s advice for HR professionals:
  1. Establish policies that deal with allegations of bullying and grievances.
  2. Implement the policies.
  3. Conduct proper investigations in relation to any bullying allegations.
  4. Identify potential risks.  This may include personal disputes, industrial disharmony, and    personal injury.
  5. Identify and implement control measures appropriate to the risk. 
  6. Even if it is found that allegations of bullying are not substantiated there may still be a risk of an employee developing an injury.  If a risk is identified, it must be appropriately controlled.
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