17 December 2012
Cara Seymour, Senior Associate and Kathryn Lewis, Graduate Associate
We frequently hear that cases of bullying and harassment at work are on the increase. Most studies suggest a figure of 1 in 5 or 1 in 6 people experiencing some form of bullying or harassment in the workplace.
In all likelihood, it is not so much that human behaviour has changed for the worse but that increased awareness of what is and what is not acceptable conduct at work is generating a higher rate of reporting of incidents that may constitute bullying or harassment.
As the body of case law in this area grows, it is instructive to look at these decisions to understand what the terms “bullying” and “harassment” mean so you can identify and to the extent possible, eliminate, the kinds of behaviours that cause harm to people and create legal risk in your workplaces. Last year the Productivity Commission estimated the effects of workplace bullying to be costing between $6 billion and $36 billion annually.
Minimising the risk of bullying and harassment requires good grievance procedures that aim at fair, confidential and timely resolution of complaints. However individual complaint-based mechanisms or policy documents are never enough to engender cultural change throughout workplaces. Broader strategies such as training and awareness raising programs, mentoring and positive leadership also need to be considered.
Bullying – what is it?
There is no legislative definition of “bullying” however, case law and those government organisations responsible for administering work, health and safety (WHS) laws have provided us with the following key elements:
- A repeated pattern of behaviour that is;
- Inappropriate, unreasonable and possibly aggressive; and,
- Poses a risk of physical and/or psychological harm.
Other features of bullying are that it is unwelcome and targeted at a particular person/s even if the subjective intention of the person was not to bully. While the power relationship between the person who is bullied and the person bullying may not necessarily be obvious, at the heart of bullying behaviour is an abuse of power.
Bullying encompasses inappropriate behaviours that range from extremely overt and aggressive to the more subtle passive aggressive forms such as:
- Physical assault
- Verbal abuse/yelling
- “Initiation Rites”
- Malicious teasing and making someone the brunt of pranks or practical jokes
- Excluding or isolating employees
- Giving employees impossible assignments, consistent heavy workloads and unrealistic timeframes
- Assigning meaningless tasks unrelated to the job
- Deliberately withholding information that is vital for effective work performance
- Consistent non-constructive criticism of work product
- Psychological harassment such as the “silent treatment”, gossip and rumours
- Favouritism and unfair allocation of tasks.
Bullying and performance management
Confusion about what constitutes bullying most often arises in the context of performance supervision and management, disciplinary action and allocations of work. Reasonable work allocation in compliance with systems and the requirements of a worker’s role, performance supervision and management are not bullying, nor are the decisions to counsel or warn a worker when performance issues arise.
There is a rising incidence of employees raising bullying and harassment complaints in response to performance management, so it is important to distinguish the differences between bullying behaviours and what is termed as “reasonable administrative action” or even reasonable disciplinary and management action.
Recently, an employee with an existing stress-related depressive disorder had her case upheld on appeal to the Federal Court. The issue before the Administrative Appeals Tribunal had been whether the employer was liable for the employee’s psychological condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Her illness was diagnosed after she received a series of promotions. She took leave and on returning from leave found that her job had been restructured and that her workload had, in her estimation, tripled. Following a group meeting, her manager called her aside for a one-on-one impromptu meeting during which the manager accused her of having a “negative attitude” and said:
“I don’t see you having a role in corporate clients and possibly anywhere in the organisation”.
The appeal first considered the correct interpretation of ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ as that phrase appears in section 5A(1) of the Act. The Federal Court confirmed the Tribunal’s finding that the employer’s action was unreasonable due to the “tension-charged” nature of the one-on-one meeting and coupled with the failure to give the employee any notice of the serious issues being raised.
It held that the impromptu meeting was causative of an aggravation of the Respondent’s pre-existing condition.1
New technology has created a more public platform for bullying and harassment which has been termed “cyber bullying”. The characteristics of cyber bullying are the same as bullying but the medium is through the internet, mobile phone and most often social networking sites. The intent must be to cause emotional distress and there must be no legitimate purpose to the communication.
Easy access to digital devices has the effect of allowing bullying to extend beyond the workplace and into home life, sometimes with devastating effect. Victoria has responded to workplace bullying introducing legislation amending the Crimes Act 1958 (Vic) with what is colloquially known as “Brodie’s Law”. This followed the death of 19 year old Brodie Panlock who was severely bullied at work. A coronial inquest found that this treatment directly resulted in her death. The enactment widens the definition of the existing crime of stalking to workplace and cyber bullying. The maximum penalty is 10 years imprisonment.
Examples of cyber bullying behaviour include: posting demeaning and humiliating photos, sexual remarks or threats and posting comments that defame or ridicule.
Unlawful workplace harassment is any form of behaviour that is unwelcome and targets a person because of a ground prohibited by discrimination legislation such as sex, race, disability and age. Behaviour amounts to harassment if a reasonable person in the position of the perpetrator would have anticipated that the person at whom the behaviour is directed, would be offended, humiliated or intimidated by that behaviour. Under discrimination legislation, sexual harassment is specifically defined to encompass an “anticipation of the possibility” that the sexual conduct would cause offence to the person.
Workplace harassment and sexual harassment can be a one off incident or a pattern of behaviour. The intention of the person is not a relevant consideration and the person claiming to have been harassed does not have to say “no” to the conduct to prove that it was unwelcome. The scope of behaviour considered as harassment includes offensive jokes, suggestive or sexual remarks, repeated unwelcome sexual invitations, racist or ageist remarks, imitating someone’s accent & repeated questions about someone’s personal life. It may include non-verbal behaviour: suggestive or aggressive looks or stares, offensive hand and body gestures, invading someone’s personal space, distributing sexually explicit or racist or sexist emails and displaying offensive or sexually explicit posters.
Lessons from the case law
One of the big mistakes employers make, is mixing personal comments or opinions with performance review or attacking the person instead of their performance. Focus your feedback on the requirements of the role and support underperformance with objective data related to duties consistent with the role. That is not to say that particular personality styles and maintaining personable relationships is never core to success in certain positions. In client service industries, the ability of an employee to maintain relationships is crucial to success. In another recent case an employee’s failure to build and sustain relationships with internal and external service providers and two internal managers was found to be a valid reason for dismissal of an employee. The employee made a bullying claim after the problems with relationships with two managers but this was not upheld and the reason for termination that he was not a good company fit was accepted by the court.2
Best practice is to remain focused on the requirements of the position and to direct all comments to that end. Pay attention to your oral and written communications and consider the impact of the email and mobile messages that you send. For example, avoid adopting an impolite or sarcastic tone or sending a barrage of emails or texts raising performance issues. If you usually address workers a certain way, maintain the same level of communication when discussing performance issues. Don’t let your frustration with an employee’s failure to perform to expectations translate into unfair treatment of that person.
- National Australia Bank Limited v KRDV  FCA 543 (28 May 2012)
- Stevenson v Air Services Australia  FMCA 55 (1 February 2012)