Workplace bullying pt. 1: What constitutes bullying?
Unfortunately, bullying occurs in a large number of Australian workplaces. The Productivity Commission estimates cost to employers of workplace bullying as being between $6-$36 billion dollars every year. Workplace bullying not only fosters stress and anxiety in your employees, increases turnover and absenteeism, and decreases productivity, but it could land you in some serious financial trouble should you fail to handle a complaint correctly according to the law.
The truth for employers is that it is not always easy to identify what is or is not bullying behaviour, and it can often go unnoticed if you are not switched on. Have you ever wondered when speaking to an employee how that employee might respond to what you are saying? Have you ever seen or heard interactions between employees in the workplace and wondered about whether they are harmless or potentially harmful? If these questions have ever crossed your mind, you are definitely not alone.
What constitutes bullying?
Workplace bullying has quickly become a focal point of various amendments to the Fair Work Act 2009 and has seen an increase in employer responsibility for bullying in the workplace. With the amendments to the legislation it is critical for employers to understand their obligations and liabilities should an issue arise within the workplace.
Many individuals have an idea of what bullying is generally, but they will have trouble defining this term legally. For employers especially, it can often be difficult to determine what behaviour or actions actually constitute bullying in their workplace. As a developing area of employment law unfortunately not all of the questions have answers at the moment.
An overview of the mechanics of the provisions of the Fair Work Act for bullying and harassment is as follows. Under the Fair Work Act a worker is bullied at work if:
- While the worker is at work in a constitutionally-covered business an individual, or a group of individuals, repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
- That behaviour creates a risk to health and safety.
There are three key things to note here. The bullying behaviour must occur at work (work outings and events may be included in this), it is behaviour that occurs repeatedly, and the behaviour must be considered unreasonable.
Further, the repeated behaviour must present a threat to the victim’s physical, emotional, or psychological wellbeing, or present a risk of contributing to an unsafe work environment.
The following could be considered bullying:
- Behaving aggressively and intimidating, including yelling and offensive language,
- Teasing and practical jokes;
- Pressuring someone else to behave inappropriately;
- Excluding someone from work-related events;
- Humiliation or hazing;
- Unreasonable work demands, for example:
– Issuing meaningless tasks that are unrelated to the job,
– Issuing tasks/workloads that are impossible to complete,
– Rearranging the employee’s roster to deliberately inconvenience them.
–The following may not be considered bullying:
- A one-off incident (that is not repeated);
- An employer delivering critical or constructive feedback during a performance review;
- Reasonable punishment as a result of negative behaviour;
- Firing or making an employee redundant with reasonable cause.
What are the penalties for an employer?
As an employer, it is your duty to prevent your employees from suffering injuries or illness as a result of bullying. Where a workplace bullying complaint or claim is brought by an employee and you do not deal adequately dealt with the claim, you will required to deal with the Fair Work Commission and may be liable to pay compensation. The first step in avoiding this is to properly understand what workplace bullying is and how to identify it.
Keep an eye out for the next article in our Bullying & Harassment series for some practical steps to prevent workplace bullying and deal with it should it arise.
How we can help
Streten Masons Lawyers specialise in guiding business owners through dealing with claims of bullying & harassment in their workplace. For specialized legal advice on this or any other area of employment law, contact one of our team on 07 3667 8966 or email me directly at Craig@smslaw.com.au
This is the first article in a two-part series. Read part 2 here
Jeremy Streten – Director of Streten Masons Lawyers