Australia: Bullying and harassment claims in the workplace – employers need to be aware of risks

The modern workplace continually presents challenges for business owners and operators who are trying to manage their enterprises effectively and to foster growth and profitability. One of these challenges lies in managing staff and being confident that interactions with them will not trigger allegations of bullying or harassment.

Speedy evolution of concepts of bullying and harassment in the workplace

The speed with which concepts evolve in the modern Australian workplace is nowhere better demonstrated than in this area. "Harassment" as a workplace concept was the first to emerge, then morphing into "harassment and bullying", and now the common term is simply "bullying" on its own. However, "harassment" and "bullying" are different things.

Forms of harassment as types of unlawful discrimination

The concept of harassment in Australian workplaces had its genesis in anti-discrimination legislation, the first example of which was the NSW Anti-Discrimination Act 1977. Largely focused on sex discrimination, the A-D Act itself made no mention of "harassment", but the concepts gradually arose of "sexual harassment" and "sex-based harassment" as forms of unlawful discrimination committed, overwhelmingly, by men.

"Sexual harassment" was typified by repeated and improper requests for sexual favours, whereas "sex-based harassment" referred to conduct which was similarly inappropriate, but not motivated by the intention of securing sexual favours.

Subsequently, the definition of the latter kind of harassment was adopted to describe inappropriate conduct toward people of a particular racial or ethnic background, or other cohorts of people protected by anti-discrimination legislation.

"Bullying" far more broad and complex than the popular stereotype

"Bullying" is a quite different concept, although potentially overlapping in some cases with harassment. The stereotypical workplace "bully" is the tyrannical supervisor from Central Casting who angrily demands impossible standards of performance from subordinates and threatens disciplinary action or other forms of retribution against workers who fail to comply.

However, the notion is somewhat more complex and broader than this, notably in that a workplace bully is not necessarily a manager, supervisor, or someone with some form of official power.

Bullying by equals or subordinates

Presently there is recognition of the concept of bullying between peers (people with more or less equivalent status and power in the workplace) and even "upwards bullying" of a supervisor by subordinates.

With the growth in bullying claims (or greater awareness of bullying, depending on your point of view) this is the concept which now encompasses many kinds of inappropriate workplace behaviour, other than underperformance or simple misconduct.

While some forms of bullying conduct can involve harassment, it is bullying as a notion which managers and supervisors need to understand.

Essential elements of bullying prior to statutory definition

Until January 2014 in Australia, "bullying" was not statutorily defined. However, both private and public sector organisations and safety authorities had policies for some time before that which articulated definitions of bullying. In general, such policies included the following essential elements for behaviour in the workplace to amount to bullying:

  • the behaviour must be unreasonable
  • it must be repeated
  • it must create a risk to health and safety
  • it must be unwelcome and unsolicited
  • it must be of a kind considered by the recipient to be offensive, intimidating, humiliating or threatening, and would be so considered by a reasonable person

Fair Work Commission acquires power to deal with bullying at work

In January 2014, amendments to the Fair Work Act 2009 took effect, giving the Fair Work Commission the power to deal with bullying at work. Section 789FD of the FW Act, which defines bullying, distils this list down to three key elements:

  • unreasonableness
  • repetition
  • the posing of a threat to health and safety

A detailed discussion of these amendments is beyond the scope of this article, but it is worth noting that, although they provide wide powers for the Commission to order a cessation of bullying which has been found to have occurred, the awarding of monetary compensation is specifically excluded.

Employers typically wary of bullying allegations by employees

Possibly the most common apprehension managers have is that some direction given to an employee about performance improvement will result in an allegation of bullying being made.

Sometimes this can generate a kind of managerial paralysis during which performance declines further, so that when breaking point is reached, the action required is much more dramatic than would have been needed initially.

The FW Act qualifies the definition of bullying by saying that "reasonable management action carried out in a reasonable way" does not constitute bullying. There is a similar provision in the NSW Workers Compensation Act 1987 ( section 11A, applying to psychological injury claims), to the effect that psychological injury is not compensable if it arises out of the "reasonable action" of an employer in relation to (among other things) performance appraisal, discipline or dismissal of the employee.

"Reasonable management action" and minimising the risk of bullying claims

The "reasonable management action" provisions are, obviously, included to recognise that there are circumstances in which employers must, quite legitimately, issue directions or take action which may be resented by an employee, and which may in some cases actually result in emotional damage. The key word is "reasonable". What is "reasonable"?

First – and most obviously – the action must be concerned with the requirements of the job. Belittling an employee for being an Abba fan or a follower of the Manly NRL side may have justifications, but could not possibly be defended as being reasonable management action.

Second, "reasonable" action is confined to the requirements of the job being done. Criticising the dress and appearance of an employee in a front-line customer service job may be reasonable, while similar action directed at a manual labourer may not. (Although for all workers it is completely legitimate to require dress to be safe in light of WHS requirements.)

Third, action must be proportionate. Correction of a shortcoming in some area crucial to the performance of the work can defensibly be carried out with much greater emphasis than in relation to some failing which is only peripheral to the job requirements.

Fourth, care must be taken in the manner in which remedial action is taken. Loud and intemperate language is not called for except possibly in emergencies. Remonstrating with an employee in the presence of co-workers is inadvisable, unless the layout of the workplace makes that unavoidable.

A final point is that it is impossible to overestimate the value of a properly structured performance review and improvement process. In fact, the quoted section of the WC Act (section 11A), which is often carelessly thought of as protecting any kind of action as long as its purpose is correcting underperformance, actually uses the words "performance appraisal", implying a systemic, rather than ad hoc approach.

Key requirements of job and objective seriousness of shortcomings

In summary, it is of course impossible to ensure that an employee might not take offence to something said, however moderate and reasonable, in relation to performance. Similarly, no-one can guarantee that an allegation of bullying and harassment will not be made.

But you will minimise your risks if you stick to the job subject matter and tailor corrective action to the key requirements of the job and the objective seriousness of any shortcomings.

Geoff Baldwin
Employment law
Stacks Champion

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.