Bullying at work, like bullying anywhere else, is something that has been around for centuries. Often easier to recognise than define, its impact in the workplace and on productivity is now beginning to be better understood. If reports are to be believed, it is the scourge of the modern workplace.
Until recently, the problem had been relatively 'contained', in that workplaces have been reasonably easy to define (spatially) and the offending behaviour conducted in front of, and sometimes to impress, others. It usually involved some element of physical or verbal, face to face interaction between workers. It was usually noticeable but at the end of the day, you left the office, workshop or site and you left it behind, albeit temporarily.
Now things have changed. With the burgeoning use of social media and the ability to reach others through email, facebook, text and other means, the bully has the means to pursue his or her victim remotely, sometimes anonymously, often relentlessly.
But the difficult question to answer is: what exactly is it? Where is the line between tough management and bullying? Is "fairness" an appropriate test? At what point do we become oversensitive to the needs of others to the detriment of the business we are trying to run? And what policies should smaller businesses introduce, if any? The answers to these questions would take us well beyond the scope of this brief legal comment and there are as many views as there are lawyers to express them.
However, Safe Work Australia recently attempted to define the concept and identify the types of behaviour which may amount to bullying. The definition is suitably generic, namely "...repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety."
Many of the examples will come as no surprise – abusive language, spreading rumours, teasing and offensive or inappropriate comments. However, the draft Code of Practice introduces the concept of 'indirect bullying' which is far more nebulous but seems to have its genesis in the idea that a person who controls the flow of information or work can also manipulate the worker, perhaps by overloading them but also by persistently denying them the opportunity to do the job they are employed to do.
At first, it might seem a step too far, since it could arguably allow the worker to dictate the flow of work which is essentially the employer's job. That is clearly undesirable. However, the hard-wearing legal notion of 'reasonableness' should prevent that happening, since an employer could explain a rise or fall in demand by reference to objective factors. And if an employee complains too loudly about workload without lodging a grievance or going through an agreed process, his or her complaint is unlikely to go anywhere. But there may be genuine instances of individuals suffering excessive workloads or a dearth of work by design, not necessity.
If we are concerned about productivity, it is important not only to avoid employers being overburdened with red tape but also to prevent the thousands of lost work hours through sickness absence caused by mental suffering. Where is the balance to be struck? That is probably a question that will not be answered clearly any time soon.
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