Bullying in the workplace is not only harmful, it is also unlawful. Employers have a duty of care to provide a work environment that is safe and free from bullying. To ensure the health and safety of your workers and to make sure everyone knows their rights and obligations all workplaces should have a clear policy.
What is workplace bullying?
The Fair Work Act s789FD(1) defines workplace bullying as occurring when an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work and the behaviour creates a risk the health and safety.
A worker may be an employee, a contractor/subcontractor or their employee, temporary labour, an outworker, an apprentice/trainee, volunteer or work experience student. Bullying may occur in the workplace or in connection with employment outside of the usual place of work and/or hours.
Behaviours that may be considered bullying include:
- Aggressive and intimidating conduct
- Belittling or humiliating comments
- Spreading malicious rumours
- Practical jokes or initiation
- Exclusion from work-related events
- Unreasonable work expectations
Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.
How is a claim lodged?
Your workplace policy should describe how a complaint can be made within the organisation and how the complaint will be managed. Dependant on the circumstances this may involve a full investigation including interviewing all parties involved, mindful of the principles of natural justice (also known as procedural fairness), before making a determination.
There are also external options open to a worker to lodge a workplace bullying complaint. In Victoria, Worksafe offer an Advisory Service for information on bullying, how to prevent it or to refer the matter to an inspector.
There is a new, and parallel jurisdiction that came in to effect 1 January 2014 that now enables workers will be able to lodge a claim directly with the Fair Work Commission for an order to stop the workplace bullying.
How is a decision reached?
In considering if the behaviour is a breach of policy and/or legislation the test is whether a reasonable person, having considered the circumstances, would see the behaviour as unreasonable including that the behaviour is offensive, humiliating or intimidating.
The proof of actual harm to health and safety is not necessary provided that a risk to health and safety as a result of the bullying behaviour has been demonstrated. It is important to note that the impact of the bullying will be considered regardless of intent.
What is my responsibility as an employer or manager?
Under federal and state law an employer may be legally responsible for behaviour such as bullying in the workplace or in connection with a person’s employment, unless it can be shown that ‘all reasonable steps’ have been taken to reduce this liability. This is called ‘vicarious liability’. People conducting a business, so far as is reasonably practical, have a duty to ensure a safe work place.
It is essential that the workplace responds to any complaints or suspicions promptly, sensitively and confidentially. Having a policy and providing training in this regard for all workers will also help to mitigate the risk of vicarious liability. As will modelling the right types of behaviour and supporting an inclusive, tolerant and respectful workplace culture.
What should our policy cover?
A sound workplace bullying prevention policy should include:
- A clear statement that the company is committed to preventing bullying and the standard expected from all workers
- A definition of what workplace bullying is and some examples of bullying behaviour
- Who the policy applies to, when and where
- Details on how to make a complaint or report a concern and how this will be managed
- Consequences for not complying with the policy
- Responsibilities for the Board/Executive/Directors, HR, Managers/Supervisors and Workers
- A grievance procedure