So, what is workplace bullying?
Workplace bullying repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Bullying may be in the form of verbal, physical, social or psychological abuse towards a worker (including the employer or manager).
No workplace is immune from bullying – it can occur in any type of workplace and towards, or by, any kind of employee, volunteer, work experience student, intern, apprentice as well as contractors.
In many instances, bullying is subtle in nature. Many victims report that they found it difficult to decern whether they were actually being bullied until after the fact. What this means for employers, is that it can be even more difficult to detect bullying in the workplace as it occurs.
There are, of course, more blatant and severe forms of bullying behaviour that is easy to identify and acknowledge. In Victoria, some types of serious workplace bullying may also constitute a criminal offence (punishable by up to 10 years’ jail!).
It is vitally important to identify what bullying is but, given the misconception (and overuse) of this term, it is equally important to be clear on what workplace bullying is not.
An essential characteristic is that bullying is repeated unreasonable behaviour towards an employee or particular group of employees. You can have a bad (or biased, or rude) boss and this does not make him/her a ‘workplace bully’. An employer can transfer, demote, discipline, counsel, retrench or sack an employee and, as long as they are acting reasonably and not in a discriminatory manner, without this constituting ‘workplace bullying’ (or other illegal conduct). Further, the legislative definition of bullying in the workplace requires the conduct in question to represent a “risk to health and safety” of another person, making this a high hurdle to overcome, meaning much workplace conduct is often unfair and unreasonable, but not necessarily bullying.
The onus of proof for workplace bullying lays on the employee to prove that they were subjected to repeated unreasonable behaviour from another worker of the employer, and that this posed a risk to their health and safety. The difficulty for most employees is gathering the evidence. When an employee is genuinely subjected to workplace bullying, particularly subtle workplace bullying, they often fail to record the incidents and gather evidence as it occurs. What this means is that many employees that are experiencing workplace bullying feel helpless because they are unable to ‘make their case’ and often times prefer to resign rather than take the matter further. The risk here is that an employer than has a workplace bully amongst their staff that is causing their colleagues dissatisfaction in the workplace and causing turnover – without the employer being able to detect the core root of the problem.The legal framework
Employer’s have a primary legal obligation under the Occupational Health and Safety Act 2004 (Vic) (similar state-based legislation nationwide) to provide a ‘safe’ workplace, and to ensure (as far as reasonably practicable) employees’ wellbeing and health whilst at work is being preserved and protected. It’s important to note this is a positive obligation on an employer to ensure there are the appropriate processes and frameworks in place to
Bullying in the workplace affords employers, as a company (and its managers), to have onerous legal responsibilities under Occupational Health and Safety and anti-discrimination law to provide a “safe” workplace, and to ensure An employer that allows bullying in the workplace to occur is not meeting their responsibility and will face severe legal consequences for this omission.
Fair Work Commission – Anit-Bullying Jurisdiction
Under the Fair Work Act, an employee who believes they are a victim of workplace bullying may file an application under the Fair Work Commission’s anti-bullying jurisdiction which seeks an order against the perpetrator to ‘stop bullying’. The Fair Work Commission is then tasked to hear the matter in relation to the alleged conduct and make a finding of bullying in the workplace (alternatively, a finding that bullying is not substantiated). In the instance bullying is substantiated, the Fair Work Commission has the power to make a ‘stop bullying order’ against the perpetrator. The concern with a matter of bullying making its way to the Fair Work Commission is that the employee must be able to sufficiently prove that the bullying has occurred, and that the bullying would likely continue if the Fair Work Commission did not make an order against the conduct. By this point, most employees have already lost trust and confidence in their employer and the process often causes further damage to the employment relationship. Once a stop bullying order matter has been determined, this information is available to the public, including the name of the employer.It sounds difficult to manage and detect, what can I do?
Policies!
The role of policies in the management of workplace bullying is central and integral to all concerned. The policy should be a statement concerning all aspects of the bullying intervention. Policies should be concise, simple and easily accessible to all employees. It should set out the legal framework of what bullying is and what it looks like in the workplace. It should then go on to set out the process for an employee making a bullying complaint and how that complaint will be handled. Finally, the policy should make clear the disciplinary action that can flow if an employee is confirmed to be a perpetrator of workplace bullying.
A Bullying, Harassment and Discrimination Policy is integral to all organisations; however, they can be tricky to draft and tailor to your organisation. Reach out on the details at the end of this blog if you need assistance with drafting, or updating, your policies.
It’s important to note that even the best policies may not lead to a change in the workplace itself. A policy shouldn’t be the company’s only ‘call to action’ on the issue of bullying. Policies are best coupled with the action items set out below.Training!
Employee training on appropriate workplace behaviour and their obligations that flow from the company’s policies, employment contracts and the legal framework is essential for prevention of bullying in the workplace. Unfortunately, choosing to not partake in bullying is not easily done for all. Further, many perpetrators of bullying do not understand the gravity of the situation on their employment, and more seriously, the consequences at law.
Ensuring your employees understand the expectations the company has, and the steps that will be taken if these standards are not met, is key to proactively preventing bullying in the workplace.Create a safe space
Keep an eye and ear out
Exit interviews
NEED FURTHER HELP?
Workplace Wizards are not workplace bullying lawyers but provide expert workplace relations, human resources, industrial relations, Workplace Health and Safety, workers’ compensation advice and support on demand and tailored to your business needs.
We offer a complete range of employee management and workplace relations services. For specialist assistance concerning bullying in the workplace, please contact us on 03 9087 694 or support@workplacewizard.com.au to discuss your needs.
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