The Australian Productivity Commission's draft mental health report released in November 2019 told us that workplace bullying was one of the leading causes of work-related mental stress in Australia.1 This outcome suggests a strong likelihood that you or someone you know have been effected by workplace bullying, and it may therefore come as no surprise. As an employment lawyer, it suggests to me that somewhere along the line, the systems in place to respond to and manage the risk of bullying have either been heavily deficient or simply not there.
There are two key ways to approach workplace bullying. Firstly, and most effectively is prevention. There are a number of ways that employers can seek to prevent bullying in the workplace and a great number of benefits (other than the obvious fact that nobody gets bullied). These are explored below.
Secondly, bullying should be met with an appropriate complaint handling procedure which responds proportionately to the risks presented by the complaint. As bullying can occur in many different ways and can be covert as well as overt, it requires that employers respond on a case by case basis to ensure that they meet their obligations.
What is workplace bullying?
According to section 789FD(1) of the Fair Work Act 2009 (NSW) (FWA), workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work, and the behaviour creates a risk to health and safety.
Due to the nature of this definition, bullying may occur through a range of behaviours, not being limited to, for example:
- aggressive and intimidating conduct,
- belittling or humiliating comments;
- practical jokes;
- exclusion from work-related events; and/or,
- unreasonable work expectations.
Importantly, reasonable management action conducted in a reasonable manner does not constitute workplace bullying. What constitutes reasonable management action depends upon the nature and context of the conduct. However, generally, the behaviour must be management action, it must be reasonable for the management action to be taken, and the management action must be carried out in a manner that is reasonable.
For example, conducting an investigation into alleged workplace misconduct will ordinarily constitute reasonable management action. Making vexatious allegations against a worker and conducting a grossly unfair investigation, however, will not.
What are the effects of Bullying?
Workplace bullying can have significant negative consequences for the individuals immediately involved and the broader workplace. Victims of workplace bullying will commonly experience effects such as depression, anxiety, sleep disturbances, nausea or muscle tension. This often also extends to obvious negative effects upon job performance, such as reduced motivation, decreased self-esteem, defensiveness at work, and behaviours intended to avoid further bullying.
If bullying is not properly managed in a timely manner, these negative personal effects may seep further into a business and across other employees. An employer may see reduced overall productivity, a negative (or even hostile) work environment, increased absenteeism, and an increased risk of conflict including legal action, just to name a few.
What are an employer's obligations with respect to workplace bullying?
Employers have an obligation under the Work Health and Safety Act 2011 (NSW) (WHS Act) to provide a safe working environment for their employees (section 19(3)(a)). This is embodied by an employer's duty to take all reasonable practicable steps to manage and prevent health and safety risks in the workplace. In respect of workplace bullying, this duty means providing a working environment free from the risk of bullying and its associated harms.
If an employer fails to take all reasonable practicable steps to ensure an employee is protected from the risk of bullying and its associated harms, they may be at risk of a claim for breaching their legal obligations. Should such a claim be made, the employee would not need to prove that there was any actual harm to their health and safety but just that there was a risk to their health and safety created by the bullying behaviour alleged.
Given the nature of this legal test, it goes without saying that prevention of bullying and the corresponding risk to health and safety in the first instance is any employer's best bet.
Preventing Bullying at Work
Employers should consider implementing the following steps toward preventing bullying in their workplace:
1. Implement a clear anti-bullying policy
The policy should clearly define what bullying is and provide examples. It should state that bullying will not be tolerated and outline a clear procedure that employees can follow should they wish to report anything, including who employees can make a complaint to, what that person will do with the information once they have it, including obligations as to confidence, the steps in an investigation where one is deemed necessary, and the possible outcomes where bullying is found to have occurred (up to and including termination of employment).
2. Facilitate a positive workplace culture
The culture of a workplace is a significant factor in preventing workplace bullying as it affects everyone in a business. A positive workplace culture may be established by an employer who sets clear standards and expectations, models appropriate workplace conduct to employees, is approachable and supportive. The flow on effect of this is that employees will generally feel safer, better respected, valued for their work, and empowered to do the right thing at work. Furthermore, if employees experience a high rate of job satisfaction, this will significantly decrease the risk of bullying occurring in the workplace, and where it does occur, it is much less likely to go unreported or be mismanaged.
3. Provide information and training to employees
In addition to having a definition and examples of bullying in the workplace anti-bullying policy, it is a good idea to provide training (formal or informal) to employees covering what constitutes bullying, how to recognise bullying, how to prevent bullying, and how to respond to bullying in the workplace, including the risks of each not being properly achieved. This again will reduce the likelihood of bullying behaviour occurring in the workplace, and if it does occur, employees are armed with the knowledge of how to respond appropriately.
Responding to a Complaint of Workplace Bullying
An employer should treat every report of workplace bullying seriously and respond as soon as possible in accordance with their legal duty, and to reduce the risk of escalation. Employers must exercise their discretion to respond proportionately to each report, taking into account all relevant factors. These include but are not limited to:
- whether the behaviour constitutes bullying;
- whether there is a risk of ongoing harm which requires immediate measures – this requires consideration of the number of parties involved, the seriousness of any allegations, the current structure of the workplace and potentially problematic current working arrangements;
- whether there are any other relevant issues that require further investigation and/or understanding;
- whether it is appropriate to manage the issue internally or to refer it to an external third party; and,
- whether the report should be progressed to a formal investigation or managed informally.
For example, if one employee was making aggressive remarks to another employee it might be appropriate for the employer to conduct informal discussions with each of the parties involved to facilitate an outcome between them. Alternatively, if that one employee was playing practical jokes on the other employee and was involving other members of staff in their conduct, this might require a formal investigation into allegations and interviews to be conducted with each person involved.
Whether or not the response to a bullying complaint is internal or external, or conducted formally or informally, all parties must maintain confidentiality with respect to the process. This is due to both parties' legal obligation of confidence and in order to prevent the spreading of sensitive information that can cause issues to escalate.
An employer should additionally ensure that they or the person managing the complaint makes a detailed record of all dealings in respect of the complaint, as this may need to be used at a later date should the matter not resolve in the workplace.
The response to workplace bullying cannot be ‘one size fits all'. Employers must be careful to respond to circumstances of each complaint according to the nature of the workplace to have the best chance of fulfilling their obligations and minimising risk to the business.
Employers who do not implement preventative measures or have a clear policy on anti-bullying in the workplace will be at a much higher risk of failure to meet the relevant WHS obligations, and of all other risks associated with bullying in the workplace.
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.