The contents of this presentation are for information purposes only and do not constitute legal advice. 

If you have any particular concerns or queries, please contact our office for specific advice.

Disclaimer

At present there is no legislation in Victoria that covers workplace bullying

Law relating to the following may apply:

• Occupational health and safety

• Crime

• Anti discrimination

• Accident compensation

The law today

Workplace bullying has been estimated to cost the Australian economy between $6 and $36 billion every year. It results in:

• Lost productivity

• Days off work

• Decreased job satisfaction

• Decreased staff retention

• Lower levels of commitment

• Damage to workplace culture

Costs to economy

The impact on victims can be significant and can include:

• Depression

• Anxiety

• Burnout

• Musculoskeletal complaints

• Social withdrawal

• Anger and irritability

Personal costs

Brodie’s case• Brodie committed suicide after enduring physical and psychological abuse from her

employer and colleagues• There was no legislation at the time that could punish her employer than OHS

breaches• Her death led to changes to stalking laws

Karen Willett• Former Victoria Police detective suffered psychological abuse and harassment for

from her colleagues for 2 years and is now unable to work due the injury she suffered

• She was successful in her WorkCover claim and she brought an action for negligence and was awarded $250,000 in damages

Recent cases

NSW apprentices• Successful prosecution of 5 workers that restrained a new apprentice with asthma

with glad wrap and poured saw dust in his mouth• Hazing ritual in that workplace to welcome new workers

Swan v Monash Law Book Co-operative • Victorian Supreme Court awarded $600,000 in damages due to an employer's

failure to take action regarding sustained workplace bullying its employee• Victim subject to sarcasm, hostility, rudeness, violent behaviour (threw book and

calculator) and threatened with termination by her manager • Employer failed to articulate its expectations about conduct in the workplace

between employees, by job descriptions, employment contracts and workplace behaviour policies

Recent cases

The House of Representatives commissioned an investigation in 2012 due to the rising instance of workplace bullying in Australia.

Recommendations from that investigation included:

• Harmonisation of states into a national framework

• Easy access to a resolution for aggrieved workers

One of the aims of the changes is to prevent future harm. It is not about naming and shaming people as bullies but trying to prevent the behaviour from continuing

Workplace bullying – we just want it to stop report

• Legislative changes apply from 1 January 2014 and allow a worker to apply to the Fair Work Commission for an order to stop the bullying

• Bullying at work occurs when an individual or a group repeatedly behaves unreasonably towards a worker or a group of workers and that behaviour creates a risk to health and safety

• More serious incidents can be aggravated single event which are caught under the Crimes Act - assault, threats to kill or cause serious injury or extortion with threats

Workers bullied at work

Examples:

• Abusive, insulting or offensive language or comments

• Undue criticism

• Excluding, isolating or marginalizing a person from normal work activities

• Withholding information that is vital for effective work performance

• Unreasonably overloading a person with work or not providing enough work

When is a worker bullied at work?

Examples:

• Setting unreasonable timelines or constantly changing deadlines

• Setting tasks that are unreasonably below or beyond a person's skill level

• Denying access to information, supervision, consultation or resources that has caused detriment to the worker

• Spreading misinformation or malicious rumors

• Changing work arrangements, such as rosters and leave, to the detriment of a worker or workers

• Unreasonable treatment in relation to accessing workplace entitlements such as leave or training

When is a worker bullied at work?

The Fair Work Commission must deal with an application promptly and within 14 days:

1. Inform itself

2. Conduct a conference

3. Hold a hearing

The Fair Work Commission can make a recommendation or express an opinion at any time

Process

Anti bullying policy:• Definition of bullying • Complaints process for victims and whistleblowers• The importance of confidentiality• Dispute resolution and investigation processes• Potential for disciplinary action

Social media and electronic communications policies

Sufficient training on workplace policies

Policies

• If the Fair Work Commission is satisfied it may make any order it considers appropriate to prevent the bullying

• Fines of between $10,000 and $51,000 can apply if a Fair Work Commission order is contravened

• Findings of bulling, would bolster overlapping actions:

– Civil claims: OH & S, WorkCover and damages for serious injury

– Criminal actions: stalking, assault, threats to kill or cause serious injury and extortion with threats

Legal consequences

Before 1 January 2014:

• familiarise yourself with the legislative changes

• review, update or draft bullying policies

• ensure employees receive appropriate training

• treat bullying complaints seriously as employees can bypass internal processes and lodge complaints directly with the Fair Work Commission

• Proactively manage risk of bullying

Incidents and reasoning behind performance management must be diligently recorded

Action required

• Substantial number of complaints

• Reasonable management directions may be misconstrued as bullying

• The Fair Work Commission may not have sufficient resources to comply with its obligations

• May be used as a stalling tactic by employees being performance managed

Potential pitfalls