Understand and manage bullying

Australia’s National Day of Action against Bullying and Violence was held on 17 March 2017. Bullying is a hot topic in Australia right now, particularly given the controversy surrounding the Safe Schools Programme and recent reports of entrenched bullying in the medical profession.

Bullying is a significant issue for many people and can occur in various contexts although most frequently it occurs at school or in the workplace. For example, 30% of children between the ages of 8 and 13 report being bullied frequently at school.

Bullying can take many forms, the most obvious of which involves physical violence. However bullying does not need to involve violence and can take other forms including:

    • name-calling which can be based on appearance, race, gender or sexuality etc.
    • deliberate and repeated exclusion of a person from workplace/school activities or social activities.
    • harassment in the form of emails, text messages, social media etc. with the intent that the words used will insult, ridicule or embarrass the person.
    • abuse such as repeated swearing at a person or belittling a person (whether in front of others or not).
    • unjustified criticism or complaints about a person.
    • excessive or unfair scrutiny or performance management at work.

It is important to understand that normal disagreements between people whether in the workplace or at school is not sufficient to justify the term ‘bullying’ nor is it appropriate to describe an employee’s unhappiness with work colleagues as bullying. The term is misused too frequently these days, which diminishes the seriousness of genuine bullying and the harm that it causes to victims.

There are three important elements which must be established before workplace behaviour will be deemed to constitute bullying. These elements are that the behaviour must be:

  1. unreasonable;
  2. repeated; and
  3. a risk to health and safety.

Employers must take complaints of bullying by employees very seriously. They should have strong anti-bullying policies and procedures in place to prevent and deal with bullying should it occur. Every employee should be aware of the contents of the anti-bullying policy and should understand the serious consequences to that employee should they breach the policy.
Employees should respond appropriately and fully investigate all complaints of bullying. A failure to respond to a bullying complaint quickly and thoroughly could place an employer at risk of legal action by a bullied employee.

Apart from the legal consequences of bullying to an employer, a failure to respond to bullying in the workplace can have serious impacts upon the morale of employees as a whole and can significantly damage the culture and productivity of a workplace.

Responding to a bullying complaint in a professional manner and with haste is also vital to prevent a business being subjected to legal action by an affected employee.

For example, a worker may seek the protection of the Fair Work Commission which since 2014, has had the power to make an order requiring the bullying behaviour to stop.

More seriously, employers who fail to protect their employees from bullying can be subjected to large compensation payouts arising from their inaction. For example, in a recentQueensland case a court awarded an employee $240,000.00 in damages as a result of bullying that she was subjected to over a relatively short period of time. In another case, the Victorian Supreme Court awarded a woman $1.36 million dollars as a result of sustained and shocking abuse at the hands of co-workers in circumstances where repeated complaints to her employer were either ignored or not acted upon.

Employees should be aware that there are potentially a number of remedies available to them if they are the victim of workplace bullying which include action in the Fair Work Commission or civil proceedings seeking damages. Time limits apply to certain applications so an affected employee should seek immediate legal advice to ensure that their rights are preserved and protected.

Should you, as either an employer or employee, require any further information on workplace bullying please contact us on 02 9517 1887.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment via Facebook, email or by calling our office on 9517 1887.


The dos and don’ts of social media

Social media can be very serious business these days. Free speech does not mean free of consequences, as the Coopers Brewery case study this week clearly shows. If your social media profile and content does not reflect the expectations of your audience, the backlash can be swift and very costly.

Cooper’s beer featured in a Bible Society sponsored “Keeping it Light” debate about marriage equality between gay agnostic Liberal MP Tim Wilson and his Christian conservative colleague Andrew Hastie.

Some people took exception at the perceived insensitivity to the issue of marriage equality, which is not seen as a “light” issue by advocates and others took exception to the religious affiliation of the brand.

Many individuals and businesses have now publicly boycotted Coopers over its religious affiliation, including our local Newtown Hotel, because they believe Cooper’s social media campaign to be inconsistent with their own beliefs and brand.

To avoid “doing a Coopers” we have put together a checklist of ‘dos and don’ts’ to ensure your tweets and posts don’t have their own unintended consequences.

“Fake news” can cost you-big time

Insulting and derogatory comments may lead to litigation, especially if something you say on social media is defamatory of someone else.

For example, in a 2014 District Court of NSW case, a teacher was awarded $105,000.00 in damages as a result of false allegations made against her on Twitter and Facebook by a former student.

What makes defamatory social media posts even worse and therefore is likely to increase the damages awarded is, as Judge Elkaim noted:

“They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”

Your real self and social media self are the same

Many people don’t consider that their social media self is a reflection of who they really are-at least as far as many others are concerned, including recruiters and clients.

It takes many years of hard work to build up a professional and personal reputation. This can all be undone if your social media posts are ill considered.

Similarly, your employer has a brand and reputation which it values. Employers are unlikely to be impressed by employees whose social media posts contradict that brand and reputation. They want an employee whose public persona and reputation fits with and compliments their brand.

Hate your boss or your co-workers? Tell your partner, not the world

You may think that it is ok to vent on social media at the end of a taxing and difficult week at work however it may lead to serious problems in the workplace, including claims against you for bullying and harassment.

Complaints about the use of social media have become much more frequent in employment related bullying and harassment claims.

What constitutes “at work” for the purposes of a bullying claim is much broader than what you might think. That is why it is important to consider the content of any social media posts you might feel like making about co-workers, even if they are being made when you are not at work.

In addition, your nasty social media posts about your boss may constitute a breach of your employer’s social media policy which could result in your dismissal. The content of the post may also breach other aspects of your employer’s policies such as policies dealing with discrimination, equal opportunity, sexual harassment or confidentiality. Just because you’re tweeting from the pub over a glass (or three) of wine does not mean that your tweets cannot have serious consequences for your employment.

Think you’re qualified for the job? Think again

Perhaps the most obvious yet most often repeated mistake on social media is the uploading of provocative or inappropriate material.

According to a recent survey:

    • 83% of recruiters are turned off by references to illegal drugs ;
    • 70% of recruiters are turned off by overtly sexual posts;
    • 66% of recruiters disliked posts containing profanity; and
    • More than 50% of recruiters would not hire a candidate who talked about guns on social media.

What this means is that despite how qualified you may think you are for the job or how well you think you did in an interview, if your social media profile is not well considered it is more likely than not that you will not be hired for that all important job.

If you must share such posts, do so privately to a small group of your friends or check your settings to ensure that your profile cannot be viewed by everyone.

A final word of warning

Social media posts can and likely will be used against a person in legal proceedings where possible. Most lawyers are awake to the potential goldmine of evidence available on social media profiles that can be used against a person in litigation matters.

For example, someone claiming to have little money to give to their ex-partner in a family law property dispute is likely to have difficulty explaining all those selfies in exotic and expensive overseas locations or countless images of the latest gadgets and fashion that they have purchased.

Similarly, a plaintiff claiming to have suffered psychological injury resulting in the person withdrawing from social situations will have a lot of explaining to do when presented with regular social media posts showing that person regularly enjoying the local nightlife.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment via Facebook, email or by calling our office on 9517 1887.