The same prominent workplace lawyer who last week slammed the ‘failure’ of Australia’s legislation around bullying in the workplace, has produced a list of myths around the same subject.
Josh Bornstein, of Maurice Blackburn Lawyers, told a LegalWise forum that criminal law is not a workable model and that workplace bullying “should be addressed by national workplace legislation and by giving victims access to a user friendly, proactive system which emphasises early intervention.” His criticism of the current legislative set-up can be read here
Bornstein has since addressed some of the common misconceptions surrounding workplace bullying.
Here he lists seven workplace bullying myths:
1. Workplace bullying is illegal.
Many employees assume that bullying is unlawful and actionable. The assumption is wrong. Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes bullying. The lack of a law that explicitly deals with workplace bullying is quite anomalous.
2. Workplace bullying is a misguided reference to a personality conflict.
Mental health damage is often invisible to the eye. Bullying behaviours are often subtle.
While it has become fashionable by some to claim that bullying allegations are unfounded and simply the result of a personality conflict or relationship breakdown, this is a myth generated principally by jaded OH&S regulators and bottom-feeding consultants seeking to drum up work.
3: There is no definition of workplace bullying.
Most OH&S regulators use working definitions of bullying that are remarkably similar. The Draft Code of Practice released on Preventing and Responding to Workplace Bullying, Safe Work Australia defined the term to mean 'repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety'.
4. Workplace bullying is a safety issue.
One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue. Confining it to the realms of OH&S hasn't worked and won't work.
For too long we have accepted a second-rate system. Law reform must allow victims of workplace bullying to take a complaint to a tribunal or court well before the situation has escalated to the point of damage to an employee's health.
Early intervention is often critical. Amending the Fair Work Act to allow this to occur would be a step in the right direction.
5. Employers should address Workplace Bullying by codes of conduct and policies.
The era of the workplace policy or code of conduct being the key to managing workplace culture is well and truly over.
It is one thing for employers to purchase a vanilla workplace policy off the internet. It's altogether another to actually manage workplace culture. The gulf between culture and policy can and is often significant. Bridging that gulf requires sustained hard work and strong management.
6. Workplace bullying should be criminalised.
In recent response to the Federal Government Review into Workplace Bullying, the ACTU has suggested that it would support the criminalisation of workplace bullying. Others have called for Brodie's law to become a national law.
I couldn't disagree more. 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.
7. The way forward
The fact that something is difficult is no reason not to address it properly. This issue can be addressed, and in order to reduce the incidence of workplace bullying, a new policy and legislative approach is overdue.
The political climate is ripe for a push for significant law reform in this area. It is evident that the current legal system does little to afford victims of workplace bullying with effective options to address the situation.
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 enhance managerial skills and improve the quality of our work environment.