13 April 2013
Dimi Baramili, Associate
There is no express prohibition against workplace bullying under Australian law, however, a broad variety of legal remedies exist to allow an individual or regulatory authority to indirectly bring a claim. In recent times discrimination and Work Health and Safety (“WHS”) laws have been the forum where bullying claims have been pursued.
The ability to prosecute under this law has contributed to the growth of this type of complaint, placing organisations on notice, and giving them incentive to address the issue. State and territory worker’s compensation schemes, the common law duty of care, criminal law and the Fair Work Act 2009 (Cth) (the “FW Act”), also enable causes of action related to bullying providing scope for employers and regulators to target it.
Under the FW Act individuals are able to initiate a direct complaint against their employer, including allegations of bullying, in a number of ways. Most commonly this is through the unfair dismissal regime (if no longer employed), or if they remain employed through breach of an enterprise agreement or the general protections provisions.
To establish a breach of an enterprise agreement it must be shown that the bullying conduct in some way violates its terms and conditions. Additionally the dispute resolution mechanism, a mandatory aspect of enterprise agreements, may be triggered by a workplace bullying complaint and workplace bullying claims can and have more readily formed the basis of a general protections claim where it is sustained (as an adverse action) in response to the employee’s exercise of a workplace right.
The Federal Court1 recently upheld the dismissal of an employee after he engaged in misconduct through initiating a physical altercation with a colleague. It did not matter that the employee was previously subject to repeated bullying from the victim, as the employer had the right to address the misconduct. This case is just one which considers the relevance of bullying to the “extenuating circumstances” of unfair dismissal claims, with its relevance often depending on the member hearing the case.
Complaints of bullying can be made to the relevant discrimination body via discrimination laws if the bullying is causally connected to a protected ground. The relevant discrimination body will then try to resolve the dispute, before the matter can be litigated.
However, the various jurisdictions are inconsistent in the grounds protected. New South Wales provides the least coverage, whereas Tasmania and Victoria are more comprehensive covering less common grounds like lawful sexual activity, and political conviction. Overlaying state and territory laws are the Federal discrimination laws.
The Federal Court identified sex discrimination when a female employee suffered victimisation and bullying in the context of repeated sexual harassment from a male colleague.2 More recently, an IBM employee is claiming up to $1.1 million for sex discrimination after she suffered sexual harassment and bullying for up to two years from her manager.3
Individuals can recover under their state or territory worker’s compensation regime if the injury arises out of, or in the course of their employment. However, this is harder to satisfy than a WHS claim as the bullying must be linked to a recognised psychological illness or medical condition.
WHS is another avenue commonly used to capture bullying claims, where a complaint is made to the relevant regulator who will then prosecute the employer provided there is sufficient evidence of a breach of the WHS laws. WHS implicitly captures bullying conduct in the positive requirement of employers to provide a safe working environment, ensuring the mental and physical health and safety of employees. This responsibility also extends to individual officers and workers who both face liability under the new harmonised WHS laws, thus deterring individuals as well as organisations. Further, the harmonised laws also require officers to take proactive steps to ensure the employer complies with their WHS duties. Currently, all Australian jurisdictions except for Victoria and Western Australia have adopted the model laws which arose out of the harmonisation process.
State and territory police are able to prosecute bullying related criminal offences such as stalking, assault and nuisance. However, Victoria is the only state to prescribe workplace bullying as part of a criminal offence.
In 2011, three individuals involved in the prolonged workplace bullying of their teenage colleague Brodie Panlock which led to her suicide, as well as her employer were each convicted and fined under WHS laws. The Crimes Act 1958 (Vic) was altered in response, specifically to capture bullying as a criminal offence.
An individual can claim that bullying amounts to a common law breach of contract, specifically a breach of an employer’s express or implied duties. Such claims are rarely used, due to issues of proof, and the time and cost involved. However, it has long been recognised that employers owe their employees a duty of care, a part of which involves the provision of a safe place to work.
One would expect that the prospect of a successful WHS prosecution would likely be enough of a deterrent to organisations, officers and workers given the significant penalties involved and the fact that a breach of these laws amounts to a criminal offence. However, given that bullying claims can also arise from less serious incidents such as performance management and have been pursued in other jurisdictions, many organisations perceive the risk as real and are responding appropriately to workplace bullying by introducing and re-enforcing bullying policies and tailored training. Employers’ initiatives in this regard have, however, been viewed as ineffectual in reducing the incidence of workplace bullying which has led to the proposed reforms which of themselves it can only be hoped redress the issues rather than, as is feared, result in an influx of vexatious claims.
- Lambley v DP World Sydney Limited  FCA 4
- Lee v Smith  FMCA 59
- Spiteri v IBM Australia Ltd  FCA 1318