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:
- repeated; and
- 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.
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