How Inadvertent bullies risk court
Employers have been warned that giving a staff member too much or too little work, making unreasonable demands and tolerating vicious workplace gossip could constitute bullying.
The examples were highlighted as some of the less obvious forms of bullying in the workplace during a HR Futures Forum, held by the Australian Institute of Management WA.
Tim Lethbridge, a partner at law firm Kott Gunning, told the forum that subtle bullying could be just as damaging as the more obvious tactics of verbal and physical assault. And business owners who do not prevent bullying could find themselves facing stiff penalties for failing to maintain a safe workplace.
Legal fees for hearings usually cost from $45,000 to $60,000 but could even extend to seven-figures.
“It could be that (a victim) is terminated because they have decreased motivation and the quality of their work has been reduced, ” he told the AIM WA Forum.
“(The victim) may be suffering depression and anxiety, which results in absences and poor work quality.
“A common result is that someone is terminated and they then bring an unfair dismissal claim saying their dismissal arose out of a history of bullying behaviour.”
The first-ever criteria for bullying was put in place in January last year when the Fair Work Act was amended to state that bullying involves an individual or a group which repeatedly behaves unreasonably towards a worker and that behaviour creates a risk to health and safety.
So while a one-off verbal attack on someone may seem like bullying, it does meet the legal definition.
But putting a great burden on a worker by repeatedly swamping him or her with too much work, or sidelining them with too light a workload, could be deemed bullying.
Mr Lethbridge conceded the law was grey because these problems could also stem from poor management.
Ian Masson, vice-president of human resources at Woodside Energy, told the forum the grey area between bullying and poor management was often evident in the directive, pace-setting management culture in some male-dominated sectors such as manufacturing, construction and resources.
“The adage about the law of men, not angels, resonates strongly in those industries, ” he said.
“I think sometimes the claim of bullying is quite appropriate but also in my experience, it is due to poor leadership rather than to intended or conscious bullying.
“I think there is a risk in the current environment in these industries that we will see more of that, because the environment is getting tough.”
The impact that bullying has on victims varies, which raises an interesting legal question about the level of responsibility that bullies and employers must shoulder for extreme reactions.
It is possible for the same behaviour to cause one person to become mildly depressed and another to become suicidal.
Mr Lethbridge said the “eggshell skull principle” held that the perpetrator and the workplace were usually responsible for an extreme or unusual reaction to bullying.
“If you punch someone in the head, 99 times out of 100, the person will say ouch, ” explained Mr Lethbridge.
“One time in 100, because the person has something wrong with their skull, the punch causes them to die or suffer serious injury.
“The person who throws the punch is usually held responsible for causing the death or injury.
“In the same way that if (the victim has an) existing psychological problem which then gets exacerbated by bullying, that doesn’t diminish the seriousness of bullying.
“The bully must take the consequences of what they caused to be exacerbated.”
Mr Lethbridge said employers may be held liable if bullying occurred in a work environment, even if not in the official line of work, for failing to maintain a safe workplace.
This included as vicious lunchtime gossip in the staff canteen or abusive behaviour at Friday night work drinks.
“Gossip can be deemed bullying by the Fair Work Commission, ” he said.
“When you suffer something like that and end up with a psychological injury, you could take action against the person, but you are more likely to take action against the employer for negligence.”
Mr Lethbridge said that even if the business owner did not have any knowledge of the bullying, he or she could still be found negligent for failing to maintain a safe workplace, if reasonable steps were not taken to ensure it. He urged employers to promote an anti-bullying culture.
“The best way to avoid bullying is to have strict and clear bullying policies communicated to all employees, directors, partners and managers and to make it part of the culture, ” he said.
“Not just policies that sit in a box in a file at the back of an office, but policies that are dealt with day to day.
“If you get this part right you can possibly avoid the rest.”
Bullying and the law
1. Discrimination: Victims can make a general protections claim under the Fair Work Act if they have been discriminated against on the grounds of their race, gender, sexuality, political persuasion, sexual orientation or any other prohibited reasons. Victims can seek compensation for lost wages and suffering.
2. Occupational Health and Safety: Victims of bullying can make a complaint to Worksafe over an employer’s failure to maintain a safe workplace. It
can result in a fine or jail for the bully, a fine for the employer if it has failed to do everything reasonably practicable to ensure a safe workplace, and a fine or jail for individual directors or officers of the employer if the offence occurred with their consent or was attributable to neglect on their part.
3. Personal Injury: Victims can pursue a workers compensation claim for a significant personal injury resulting from bullying. Employers can be found negligent for failing to take reasonable care to avoid causing injury to an employee.
4. Criminal charges: Victims can complain to police if conduct breaches the criminal code, who can lay charges. Bullies can be fined or jailed.
5. Breach of contract: Victims can pursue their employer for breaching an implied term in the contract of employment to provide a safe workplace. Victims can seek damages for lost wages and costs.
© The West Australian
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