A prominent Melbourne employment lawyer, Josh Bornstein, has
suggested that we need to rethink how we deal with workplace
bullying in legal terms.
He says, surely correctly, that the "Brodie's law"
approach, criminalising bullying as akin to stalking, is more
symbolic (and legislative "feel good") than of real
benefit, in the vast majority of cases.
And he argues that we will never make headway against workplace
bullying while it is perceived as a safety issue, essentially
because an OH&S focus addresses processes and implementation,
and in rare cases penalties for a business that handles a bullying
issue very badly, but there is generally no private right of
But would a much broader right to make a claim about bullying be
suitably calibrated to address genuine cases, or would it open
floodgates to many cases that are more about general disgruntlement
or workplace politics than seriously inappropriate behaviour? As
we've seen with unfair dismissals, despite the laudable goal to
avoid imperatives for employers to pay "go away money",
the simple fact is that wherever there will be costs in money and
time to defend claims, money will be paid to make them go away,
even in cases of low merit. And defining bullying for the purposes
of a right to make a damages claim would be a particularly perilous
And what that approach ignores is that real cases of bullying
generally involve deep-seated cultural issues and behavioural
traits of the workplaces, bully and victim. Might we not achieve
more by focussing directly on those? Of course, in the short and
medium term, that will work in decent workplaces but not reach the
toxic ones. And discrimination legislation has certainly permeated
everyone's consciousness because of the risk of claims. A right
of action for bullying might do the same, but at what cost?
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