Bullying: action not intent matters

EMPLOYERS MUST ensure employee policies and culture discourages behaviour which could be construed as bullying, according to an employment law firm

Bullying: action not intent matters

EMPLOYERS MUST ensure employee policies and culture discourages behaviour which could be construed as bullying, according to an employment law firm.

The question of when a practical joke crosses the line to become bullying can be difficult to answer, however a key consideration in the courts is the action itself, rather than the motivation or intent.

“Bullying behaviour can arise when perceivably ‘harmless’ jokes get out of hand,” said Greg Robertson, general counsel for Harmers Workplace Lawyers.

“What may have started as a fairly innocuous jibe, when repeated or spread across an organisation can wreak havoc on the targeted individual.”

Employers could not be too cautious when it comes to keeping employee behaviour in check, according to Robertson.

“It is important to remember that our workplaces are made up of such diverse personalities, so what may seem funny to one person can be taken as a personal attack by another,” he said.

“It needs to be remembered that even when a joke, comment or action isn’t intended to cause harm or distress, it can be perceived that way by the recipient and by the courts. If conduct has offended, humiliated or intimidated, the motive, intention or reason is irrelevant.”

Referring to the current parliamentary inquiry into the NSW Ambulance Service, where there have been serious allegations of bullying and harassment, Robertson said: “This high-profile inquiry will no doubt bring more attention to the issue of harassment and bullying in the workplace. However, there are numerous other examples in existence where insidious (or more subtle forms of) bullying has proven to be just as detrimental to targeted employees.”

Employers need to be especially aware of how new employees are treated, particularly in relation to any kind of “initiation” activities, he said.

“When an employee is new, it is even harder to gauge how they will perceive a ‘light-hearted’welcome. Employee hierarchies can also play a part, as junior employees can feel more vulnerable to the words or actions of superiors.”

Taking factors such as reduced profits due to absenteeism, a drop in productivity or performance, increased staff turnover and legal costs into account, Robertson said that workplace bullying is estimated to cost Australian business between $6 billion and $13 billion a year.

“On the legal side, bullying can lead to liability in reinstatement claims, claims for compensation for sexual discrimination or harassment, claims for damages for personal and psychiatric injury, prosecution for breach of occupational health and safety law, and even criminal charges (when bullying amounts to assault),” he said.

“For employees, the emotional and social impact on victims of bullying can be hugely detrimental. An episode of attack or an ongoing culture of bullying can also wreak havoc on wider workplace morale.”

All companies needed to have some process in place to recognise and deal with any instances of bullying, Robertson said.

In terms of policies, he said it was best to treat bullying as part of a wider concern about inappropriate workplace behaviour. In that way, bullying can be covered by a code of conduct or part of an OHS policy.

With written policies, employers could send a clear message to employees that any form of inappropriate conduct won’t be tolerated and spell out what would be considered inappropriate and the consequences.

“A policy can also enable the employer to effectively discipline and, if necessary, remove the bully and can assist the employer to demonstrate that they have taken all practical steps to eliminate such behaviour,” he said.

Practical steps for employers

• Consult with employees and identify risk of inappropriate behaviour and determine what needs to be done to prevent or overcome that culture

• Survey employees to see whether inappropriate behaviour exists

• Develop an effective policy and procedure to deal with inappropriate workplace conduct of any kind (not just bullying or discrimination)

• Communicate the policy to all employees, with regular training and induction training for new staff

• Take all complaints seriously and ensure appropriate investigation

• Ensure compliance with the policy through regular reviews and follow-up

• Keep accurate records of steps taken to assist if legal action commences

Source: Harmers Workplace Lawyers

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