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,
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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