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The Myths and Misconceptions about Workplace Bullying

Bullying, whether in the school yard or workplace, attracts its fair share of public
interest and controversy. This can be partly explained by some of the spectacularly
nasty cases that excite public attention. In the last week, a fierce twitter bullying
campaign by what are described on twitter as “trolls” provoked an apparent suicide
attempt on the part of the victim. She was bombarded by tweets abusing her and
suggesting ways for her to kill herself. She gave up and at 2am tweeted “you win”
before attempting suicide.


How to deal with workplace bullying also remains contentious. Although there is
almost a consensus that workplace bullying is not currently well managed, opinions
divide sharply thereafter on what policy or legal response should be made. A Federal
Government inquiry into the matter has recently concluded. It’s findings and
recommendations are not yet published.


I intend to argue that in order to reduce the incidence of workplace bullying, a new
policy and legislative approach is overdue. I will do so in the context of briefly
examining some of the myths and misconceptions that this issue attracts.


1. Workplace Bullying is Illegal
This myth that bullying in the workplace is illegal is the one I am most frequently
confronted with in my legal practise representing employees. Many employees
assume that bullying, per se, is unlawful and actionable. They are both surprised and
disappointed when I explain that the assumption is wrong.


        Contrary to popular belief and despite the apparent scale of the
        phenomenon, there is no statutory scheme in Australia that proscribes


                                                                                        1
bullying. The lack of a law that explicitly deals with workplace bullying is
anomalous for reasons I will deal with later.



Bullying is alleged most commonly in personal injury cases, whether
employees are seeking weekly payments, medical expenses or a common
law claim brought under the provisions of the Accident Compensation Act
1985 (Vic). In order to be paid lump sum compensation under s 98C of the
Accident Compensation Act 1985 (Vic) for a psychiatric injury, it is necessary
to demonstrate 30% whole person impairment – an extremely high threshold
to meet. This is compared to 5-10% whole person impairment for physical
injuries. In order to sue at common law for a psychiatric injury, a bullying
victim must demonstrate that they have suffered 30% whole person
impairment, or a 'serious injury' in accordance with the tests set out in the
Accident Compensation Act 1985 (Vic). It is an onerous obligation. The victim
will also need to establish negligence on the part of the employer, and the
forseeability of sustaining the type of injury they are suffering.



The bottom line is that in order to be able to sue to recover damages over
workplace bullying, an employee must be severely psychiatrically damaged.



Employees who suffer serious psychiatric injury through workplace bullying
may also have insurance benefits by virtue of their membership of a
superannuation fund. For example, many super funds provide automatic
insurance to their members for temporary or total and permanent disability.



Workplace bullying may involve a breach of Occupational Health and Safety
(”OHS”) legislation. Again, bullying is not expressly dealt with in OHS
legislation. Rather, an employer or individual employees may be prosecuted

                                                                                2
for breaching the requirement to maintain a safe workplace. The victim
            cannot pursue or institute a prosecution.



            Brodie’s law is not a bullying law but a stalking law1. It has no application to
            the overwhelming majority of workplace bullying cases as it applies to
            extreme stalking behaviour. In my view, it is a “dead letter’, a law that may
            have been well intentioned but sits on the statute books unused.



            Bullying behaviour is often alleged in cases alleging unlawful discrimination
            under both federal and state statute. The relatively new s.351 of the Fair
            Work Act 2009 (Cth) (‘the Fair Work Act’) may be invoked in similar
            situations. That section prohibits a person from taking adverse action where
            such action is motivated by the sorts of attributes commonly protected by anti
            discrimination legislation.



            One can see from this brief survey of workplace laws that bullying and the
            law have some interaction. However, that interaction is haphazard, indirect
            and reactive.


2. There is no definition of Workplace Bullying
It is often suggested that legislating to directly address and prohibit workplace
bullying is impossible because there is no universally accepted definition of
workplace bullying.


It is also asserted that workplace bullying is impossible to define. It is “just so
subjective”, proclaim the critics and the white anters.



1
    See Crimes Act 1958 (Vic) s 21A


                                                                                               3
These claims are, to use an old fashioned technical legal expression, nonsense.


Most OHS regulators use working definitions of bullying that are remarkably similar.
In the Draft Code of Practice released on Preventing and Responding to Workplace
Bullying in 2011, Safe Work Australia defined the term to mean ‘repeated,
unreasonable behaviour directed towards a worker or a group of workers that creates
a risk to health and safety’2.


The Code further defined the concept in two ways. Repeated behaviour is said to
refer to the “persistent nature of the behaviour and can refer to a range of behaviours
over time”3. Unreasonable behaviour is, described as “behaviour that a reasonable
person, having regard for the circumstances, would see as victimising, humiliating,
undermining or threatening”4.


Underlying the debate about whether workplace bullying can be defined and
legislation regulating it introduced is a genuine problem. Bullying can and does
manifest itself in a remarkably diverse range of behaviours. The only limitation on
these behaviours is the parameters of the human imagination. It is not possible to
give an authoritative and exhaustive list. In this way, it is a complex phenomenon.


People may also disagree about whether certain behaviours constitute bullying.


There can also be no real argument that the term is loosely bandied about and from
time to time, misused. Employees who have received a poor performance review or
who undergo genuine performance management may wrongly cite workplace
bullying.

2
  Safe Work Australia, Draft Code of Practice – Preventing and Responding to Workplace Bullying (September
2011) Safe Work Australia, 4 <
http://www.safeworkaustralia.gov.au/sites/swa/Legislation/PublicComment/Pages/Model-WHS-CoP-Public-
Comment.aspx>.
3
  Ibid.
4
  Ibid.


                                                                                                             4
Several observations may be made about this sort of debate.


First, I ask have you ever known anyone to concede or admit that he or she is a bully
at work. Invariably, bullying is denied by the alleged perpetrator. Secondly, I
rhetorically ask each and every one of you:


   (a) have you witnessed or experienced bullying in the workplace?; and


   (b)   have you experienced or witnessed bullying allegations that lack merit?


Most people I speak to answer both these questions in the affirmative. I do too.


Why then is it so difficult to imagine a judge or tribunal member making the same sort
of judgments based on evidence presented in a particular case? Is it impossible to
decide what is “repeated unreasonable behaviour” in a particular context?


These are the sorts of judgments that our courts and tribunals exercise every day.
Unfair dismissal laws have existed in this country for almost 40 years. Despite the
mischievous and misleading rhetoric about their effect on job creation, the reality is
that the sky is still roughly in the same trajectory that it was when these laws were
introduced. Judges and tribunal members have been making decisions based on
what is fair in the circumstances of each case for all of that time.


That people lack a clear understanding or definition of a particular problem is not
exactly new either. Again my colleagues and I routinely consult employees who
complain that they have been “defamed” or subjected to “discrimination” when on
closer analysis that is simply not the case. Their understanding of those concepts is
frequently wrong.




                                                                                         5
There is no doubt that much more can and should be done to educate employers and
employees about the nature of bullying. A shared understanding is in the interests of
all of us. Indeed, it is in the interests of those wrongly accused of bullying for there to
be a better understanding of what is and what is not workplace bullying.


3. Workplace Bullying is a misguided reference to a Personality Conflict
It has become fashionable by some commentators and OHS professionals to claim
that all too often, bullying claims are unfounded and simply a misguided reference
to a personality conflict or relationship breakdown. When I hear such claims, I
imagine a mythical family court judge lamenting that if it wasn’t for personality
conflicts or relationship breakdown, there would be no need for divorce.


This is a myth and/or misconception generated principally by OHS regulators and
bottom-feeding IR consultants seeking to drum up work.


It is often invoked in response to criticisms about the lack of effective policing
undertaken by such regulators. We all know that there are large numbers of bullying
complaints each year. A fraction are investigated by the regulators. A fraction of that
fraction are upheld. The vast majority are “not substantiated”. An even smaller
fraction result in a prosecution.


Underlying these trends are genuine difficulties experienced by OHS investigators in
bullying cases. To put it crudely, there is no “blood on the floor”. Mental health
damage is often invisible to the eye. Bullying behaviours are often subtle or
Machiavellian and an accomplished bully can often construct a defence of plausible
deniability.


As the Productivity Commission has observed:




                                                                                              6
"OHS inspectors generally find psychosocial issues in the workplace
         harder to address than physical hazards. OHS inspectors responded in a
         survey that they found it much harder to get employers, particularly small
         manufacturing firms, to deal with psychosocial factors. They also found
         cases of bullying to be much more difficult to resolve. Inspectors described
         bullying cases as being emotive and involving a range of different individual
         interpretations of the events, making it more difficult to substantiate a claim.
         As a result of these difficulties, some inspectors reported that they were
         reluctant to handle psychosocial complaints (Johnstone, Quinlan and
         McNamara 2008)"5.


Personality conflicts are inevitable in any workplace. Workplace bullying is not
inevitable in the workplace. A personality conflict can develop into workplace bullying
depending on the behaviour of the protagonists. At the same time, personality
conflicts can coexist with a professional and civilised work environment.


Personality conflict or relationship breakdown are at the heart of almost all workplace
bullying cases.


4. Workplace Bullying is a safety issue
One of the keys to sensible legislative and policy reform on workplace bullying is to
remove it from its current legal and cultural designation as an occupational health
and safety issue.


There are 2 bases for my view. The first is a matter of principle; the other driven by
more pragmatic considerations.




5
 Productivity Commission 2010, Performance Benchmarking of Australian Business
Regulation: Occupational Health & Safety, Research Report, Canberra, 299


                                                                                            7
First and foremost, workplace bullying is illegitimate and destructive behaviour. It is
illegitimate whether an injury is caused or threatened. It raises questions of how we
treat each other at work. A workplace free of bullying requires a standard of
behaviour, of civilised discourse and interaction.
Workplace bullying is illegitimate in much the same way that unlawful discrimination
is. Both can cause a compromised health and safety environment. Both can cause
catastrophic damage to health but it is only bullying that remains pigeon-holed in the
occupational health and safety and personal injury sub-culture.


The pragmatic reason is this: confining workplace bullying to the realms of OHS
hasn’t worked and it won’t work.


For far too long, we have accepted a system which entrusts the regulation and
policing of this issue to state based regulators. Workplace regulators and OHS
professionals are often overwhelmed by the volume of workplace bullying complaints.
They quickly become jaded by workplace bullying. They suffer “compassion fatigue”.
It is too easy to not investigate or reject a bullying complaint as based on, e.g. a
personality conflict.


In Victoria, we have WorkSafe. Like all other state funded regulators, it is simply not
resourced sufficiently to manage the volume of workplace complaints it receives. It
investigates a tiny fraction of complaints6.


Although it achieved a successful high profile prosecution in the Brodie Panlock
case, the employer and the bullies were fined 4 years after Ms Panlock committed
suicide. Even in that case, I understand that there may have been a reluctance within
the agency to pursue that matter.


We have accepted a second rate system for too long.
6
 Rachel Wells, ‘Most workplace bullying claims fall short’, The Age (Online) July 24 2011 <
http://www.theage.com.au/victoria/most-workplace-bullying-claims-fall-short-20110723-1hub7.html>


                                                                                                   8
Those who have represented victims of unlawful workplace discrimination will be all
too aware that it too has a corrosive impact on the mental health of employees who
experience it. Quite sensibly, we do not require proof of a risk to health or safety for
the legal system to provide redress and protection under anti discrimination law.


I advocate law reform that allows victims of workplace bullying to take a complaint to
a tribunal or court well before the situation has escalated to the point of irreversible
damage to an employee’s health. We need a system that allows early intervention
that maximises the chances of health and preserving the employment relationship.


I suggest that consideration be given to amending the Fair Work Act to allow this to
occur. The Fair Work Act has national reach. A civil remedy provision proscribing
bullying could be introduced. An affected person could bring a case. Either Fair Work


Australia, the Federal Court or Federal Magistrates Court could have a role. Broad
remedial powers would be appropriate.


Regulators could have a complementary role. For example, the Fair Work
Ombudsman currently can initiate proceedings in respect of unlawful workplace
discrimination as can employee victims. I see no reason why a similar approach
could not be taken in the case of workplace bullying.


OHS laws impose obligations on employers to provide employees with a safe
workplace so far is reasonably practicable. When bullying is sufficiently serious, a
complaint can be made alleging the employer has failed in its obligations. Once a
complaint is made, an investigation may take place. If the outcome of that
investigation identifies a breach of OHS laws, a prosecution of the employer and
relevant employees may follow. This process can take several years. The process of
investigating bullying complaints is slow and ineffective as it is conducted by


                                                                                           9
workplace inspectors who are also monitoring the compliance of OHS legislation
more widely.


        Additionally while there are implications for the employer if found to have
        breached OHS laws, there are no legal remedies for the victim of the
        workplace bullying which affects the efficacy of pursuing workplace bullying
        under OHS legislation. In addition by the time the OHS process unfolds, the
        damage to a bullying victim has been done, often irreparably.


5. Employers should address Workplace Bullying by codes of conduct and
policies
The era of the workplace policy or code of conduct being the key to managing
workplace culture is well and truly over.


David Jones had a state of the art policy on sexual harassment when it faced serious
allegations about the conduct of its then CEO in 2011. Indeed, in most cases of
harassment and bullying that I deal with there is a terrific workplace policy prohibiting
the conduct my client alleges.


It is one thing for employers to purchase a vanilla workplace policy off the internet or
from law firms or consultants. It’s altogether another to actually manage workplace
culture. The gulf between culture and policy can and is often significant. Bridging that
gulf requires sustained hard work and enlightened management.


There are several other factors that militate against reliance on workplace policy and
codes of conduct. They relate to compliance.


First, many employers now have their workplace policies “legalled” so that the policy
can’t be enforced by employees. It is standard for such policies to be expressed to
apply to the employee but at the same time to state that they do not form part of the

                                                                                        10
employee’s contract of employment. Such provisions have been common in the
aftermath of Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC
120, in which the Federal Court found that a policy prohibiting workplace bullying was
an enforceable term of the employee’s employment contract and awarded substantial
damages for breach.


Secondly, in larger workplaces, it is left to human resources managers to effectively
police workplace policies.


What happens if the alleged bully is the boss? Self preservation for the beleaguered
human resources manager dictates the answer here. Very little. Or worse, the
complainant is removed or sacked.


And for those who suggest that this must occur rarely, I want you to reflect on some
of the “strong personalities” who have or continue to lead companies, schools,
political parties, sporting organisations, religious institutions and so on. Is it possible
that some of them are or were bullies?


There is a fundamental ambivalence about bullying in our society which deserves a
far more profound analysis than I can provide today.


When we are confronted with strong examples of bullying, we tend to abhor it. At the
same time, we reward many of those who are particularly adept at perpetrating it.


The kid in the playground with all the tonka toys and kicking sand in other kids’ faces
may grow up to be the CEO or leader of a church or political party.


6. Workplace Bullying should be criminalised
Following the tragic suicide of Brodie Panlock in 2010, new provisions were
introduced into the Crimes Act 1958 (Vic) to try and incorporate serious bullying


                                                                                              11
behaviour into the offence of stalking. The Crimes Amendment (Bullying) Act 2011
(Vic) was introduced to expand the definition and scope of stalking under the Crimes
Act 1958 (Vic).


The definition of stalking under s 21A was expanded to include among other things
making threats to the victim, using abusive or offensive words to or in the presence of
the victim, performing abusive or offensive acts in the presence of the victim and
directing abusive or offensive acts towards the victim7. A course of conduct which the
offender ought to have understood would be likely to cause the victim harm including
self-harm was also included in the definition8.


The maximum penalty for stalking is 10 years imprisonment and therefore provides a
punishment to the perpetrator of bullying if found guilty, although not a direct remedy
to the victim.


Similar amendments were also added to the Stalking Intervention Orders Act 2008
(Vic)9 and the Personal Safety Intervention Orders Act 2010 (Vic)10, so that the three
Acts are consistent and victims of serious bullying can make applications for the
issue of intervention orders.


In recent response to the Federal Government Review into Workplace Bullying, the
ACTU has suggested that it would support the criminalisation of workplace bullying11.
Others have called for Brodie’s law to become a national law.


I couldn’t disagree more.



7
  See Crimes Act 1958 (Vic) s 21A
8
  Crimes Act 1958 (Vic) s 21A (3)
9
  See Stalking Intervention Orders Act 2008 (Vic) s 4
10
   See Personal Safety Intervention Orders Act 2010 (Vic) s 10
11
   Australian Council of Trade Unions, (ACTU) Submission To the House Standing Committee on Education &
Employment, Inquiry into Workplace Bullying, 4 July 2012, 8


                                                                                                          12
Criminal law should only intrude into the workplace in extreme situations. Most
bullying cases are not criminal matters.


Those bullying cases which involve actual or threatened assault do not require new
criminal laws. Existing provisions of the Crimes Act 1958 (Vic) will suffice.


While Brodie’s law has been symbolically important, at a practical level it has been
next to useless. It does not apply to 95% of bullying situations. Even if it was
amended to change that, it is deeply flawed. To give but one illustration of its flaws,
imagine you are an employer and an employee turns up to work on Monday
brandishing an intervention order prohibiting another employee from going within 100
metres of him or her.


Just as state based OHS bureaucracies are ill-equipped to manage bullying
compliance, our police forces have scarce resources and will not deploy them to deal
with workplace bullying.


7. The Way Forward
The Federal Government is currently conducting a review into bullying in the
workplace and the terms of reference are directly addressed at “gaps that should be
addressed in the interests of enhancing protection against and providing an early
response to workplace bullying, including through appropriate complaint
mechanisms”12.


Before I am criticised for advocating the expansion of the “nanny state”, can I remind
you of some of the protections currently enjoyed by employees under federal law.
Employees are protected from:


12
  Commonwealth of Australia, Inquiry into Workplace Bullying – Terms of Reference, Parliament of Australia <
http://aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?
url=ee/bullying/tor.htm>


                                                                                                               13
(a) being misled about an aspect of workplace bargaining;


   (b) being exposed to undue influence or pressure to accept a guarantee of
         annual earnings;


   (c)   being subjected to a false or misleading representation about workplace
         rights; and


   (d)   punitive retaliation for making a complaint to the employer about an aspect of
         their employment under the Fair Work Act.


Indeed, an employee who complains that another employee is being subjected to
bullying is protected from adverse action. The bullying victim has no such protection.


The political climate is ripe for a push for significant law reform in this area. It is
evident that the current legal system does little to afford victims of workplace bullying
with effective options to address the situation.


In recent months, we have heard a considerable amount of rhetoric and commentary
about the supposed drain on productivity attributed to Australia’s workplace relations
system. Virtually none of this commentary is evidence based. It grossly over-
simplifies the nature of productivity and the constituent parts that are involved in
affecting our productivity performance.


In the case of workplace bullying, the science is in. The Productivity Commission
reported on the issue in 2010. Its report confirmed that workplace bullying is a multi
billion dollar productivity-sapping industry. Employer organisations and CEO’s are far
more comfortable in advocating the removal of penalty rates or the benefits of
individual contracts. Why?



                                                                                          14
An investment in an educational campaign about workplace bullying, together with
the legal reform, I suggest would reap a huge dividend by saving millions in lost
productivity, healthcare costs and social welfare payments. It would enhance
managerial skills and improve the quality of life of employees.


I look forward to a modern effective approach to workplace bullying in this country.
Bring it on.




                                                                                       15

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Myths And Misconceptions About Workplace Bullying Josh Bornstein

  • 1. The Myths and Misconceptions about Workplace Bullying Bullying, whether in the school yard or workplace, attracts its fair share of public interest and controversy. This can be partly explained by some of the spectacularly nasty cases that excite public attention. In the last week, a fierce twitter bullying campaign by what are described on twitter as “trolls” provoked an apparent suicide attempt on the part of the victim. She was bombarded by tweets abusing her and suggesting ways for her to kill herself. She gave up and at 2am tweeted “you win” before attempting suicide. How to deal with workplace bullying also remains contentious. Although there is almost a consensus that workplace bullying is not currently well managed, opinions divide sharply thereafter on what policy or legal response should be made. A Federal Government inquiry into the matter has recently concluded. It’s findings and recommendations are not yet published. I intend to argue that in order to reduce the incidence of workplace bullying, a new policy and legislative approach is overdue. I will do so in the context of briefly examining some of the myths and misconceptions that this issue attracts. 1. Workplace Bullying is Illegal This myth that bullying in the workplace is illegal is the one I am most frequently confronted with in my legal practise representing employees. Many employees assume that bullying, per se, is unlawful and actionable. They are both surprised and disappointed when I explain that the assumption is wrong. Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes 1
  • 2. bullying. The lack of a law that explicitly deals with workplace bullying is anomalous for reasons I will deal with later. Bullying is alleged most commonly in personal injury cases, whether employees are seeking weekly payments, medical expenses or a common law claim brought under the provisions of the Accident Compensation Act 1985 (Vic). In order to be paid lump sum compensation under s 98C of the Accident Compensation Act 1985 (Vic) for a psychiatric injury, it is necessary to demonstrate 30% whole person impairment – an extremely high threshold to meet. This is compared to 5-10% whole person impairment for physical injuries. In order to sue at common law for a psychiatric injury, a bullying victim must demonstrate that they have suffered 30% whole person impairment, or a 'serious injury' in accordance with the tests set out in the Accident Compensation Act 1985 (Vic). It is an onerous obligation. The victim will also need to establish negligence on the part of the employer, and the forseeability of sustaining the type of injury they are suffering. The bottom line is that in order to be able to sue to recover damages over workplace bullying, an employee must be severely psychiatrically damaged. Employees who suffer serious psychiatric injury through workplace bullying may also have insurance benefits by virtue of their membership of a superannuation fund. For example, many super funds provide automatic insurance to their members for temporary or total and permanent disability. Workplace bullying may involve a breach of Occupational Health and Safety (”OHS”) legislation. Again, bullying is not expressly dealt with in OHS legislation. Rather, an employer or individual employees may be prosecuted 2
  • 3. for breaching the requirement to maintain a safe workplace. The victim cannot pursue or institute a prosecution. Brodie’s law is not a bullying law but a stalking law1. It has no application to the overwhelming majority of workplace bullying cases as it applies to extreme stalking behaviour. In my view, it is a “dead letter’, a law that may have been well intentioned but sits on the statute books unused. Bullying behaviour is often alleged in cases alleging unlawful discrimination under both federal and state statute. The relatively new s.351 of the Fair Work Act 2009 (Cth) (‘the Fair Work Act’) may be invoked in similar situations. That section prohibits a person from taking adverse action where such action is motivated by the sorts of attributes commonly protected by anti discrimination legislation. One can see from this brief survey of workplace laws that bullying and the law have some interaction. However, that interaction is haphazard, indirect and reactive. 2. There is no definition of Workplace Bullying It is often suggested that legislating to directly address and prohibit workplace bullying is impossible because there is no universally accepted definition of workplace bullying. It is also asserted that workplace bullying is impossible to define. It is “just so subjective”, proclaim the critics and the white anters. 1 See Crimes Act 1958 (Vic) s 21A 3
  • 4. These claims are, to use an old fashioned technical legal expression, nonsense. Most OHS regulators use working definitions of bullying that are remarkably similar. In the Draft Code of Practice released on Preventing and Responding to Workplace Bullying in 2011, Safe Work Australia defined the term to mean ‘repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’2. The Code further defined the concept in two ways. Repeated behaviour is said to refer to the “persistent nature of the behaviour and can refer to a range of behaviours over time”3. Unreasonable behaviour is, described as “behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening”4. Underlying the debate about whether workplace bullying can be defined and legislation regulating it introduced is a genuine problem. Bullying can and does manifest itself in a remarkably diverse range of behaviours. The only limitation on these behaviours is the parameters of the human imagination. It is not possible to give an authoritative and exhaustive list. In this way, it is a complex phenomenon. People may also disagree about whether certain behaviours constitute bullying. There can also be no real argument that the term is loosely bandied about and from time to time, misused. Employees who have received a poor performance review or who undergo genuine performance management may wrongly cite workplace bullying. 2 Safe Work Australia, Draft Code of Practice – Preventing and Responding to Workplace Bullying (September 2011) Safe Work Australia, 4 < http://www.safeworkaustralia.gov.au/sites/swa/Legislation/PublicComment/Pages/Model-WHS-CoP-Public- Comment.aspx>. 3 Ibid. 4 Ibid. 4
  • 5. Several observations may be made about this sort of debate. First, I ask have you ever known anyone to concede or admit that he or she is a bully at work. Invariably, bullying is denied by the alleged perpetrator. Secondly, I rhetorically ask each and every one of you: (a) have you witnessed or experienced bullying in the workplace?; and (b) have you experienced or witnessed bullying allegations that lack merit? Most people I speak to answer both these questions in the affirmative. I do too. Why then is it so difficult to imagine a judge or tribunal member making the same sort of judgments based on evidence presented in a particular case? Is it impossible to decide what is “repeated unreasonable behaviour” in a particular context? These are the sorts of judgments that our courts and tribunals exercise every day. Unfair dismissal laws have existed in this country for almost 40 years. Despite the mischievous and misleading rhetoric about their effect on job creation, the reality is that the sky is still roughly in the same trajectory that it was when these laws were introduced. Judges and tribunal members have been making decisions based on what is fair in the circumstances of each case for all of that time. That people lack a clear understanding or definition of a particular problem is not exactly new either. Again my colleagues and I routinely consult employees who complain that they have been “defamed” or subjected to “discrimination” when on closer analysis that is simply not the case. Their understanding of those concepts is frequently wrong. 5
  • 6. There is no doubt that much more can and should be done to educate employers and employees about the nature of bullying. A shared understanding is in the interests of all of us. Indeed, it is in the interests of those wrongly accused of bullying for there to be a better understanding of what is and what is not workplace bullying. 3. Workplace Bullying is a misguided reference to a Personality Conflict It has become fashionable by some commentators and OHS professionals to claim that all too often, bullying claims are unfounded and simply a misguided reference to a personality conflict or relationship breakdown. When I hear such claims, I imagine a mythical family court judge lamenting that if it wasn’t for personality conflicts or relationship breakdown, there would be no need for divorce. This is a myth and/or misconception generated principally by OHS regulators and bottom-feeding IR consultants seeking to drum up work. It is often invoked in response to criticisms about the lack of effective policing undertaken by such regulators. We all know that there are large numbers of bullying complaints each year. A fraction are investigated by the regulators. A fraction of that fraction are upheld. The vast majority are “not substantiated”. An even smaller fraction result in a prosecution. Underlying these trends are genuine difficulties experienced by OHS investigators in bullying cases. To put it crudely, there is no “blood on the floor”. Mental health damage is often invisible to the eye. Bullying behaviours are often subtle or Machiavellian and an accomplished bully can often construct a defence of plausible deniability. As the Productivity Commission has observed: 6
  • 7. "OHS inspectors generally find psychosocial issues in the workplace harder to address than physical hazards. OHS inspectors responded in a survey that they found it much harder to get employers, particularly small manufacturing firms, to deal with psychosocial factors. They also found cases of bullying to be much more difficult to resolve. Inspectors described bullying cases as being emotive and involving a range of different individual interpretations of the events, making it more difficult to substantiate a claim. As a result of these difficulties, some inspectors reported that they were reluctant to handle psychosocial complaints (Johnstone, Quinlan and McNamara 2008)"5. Personality conflicts are inevitable in any workplace. Workplace bullying is not inevitable in the workplace. A personality conflict can develop into workplace bullying depending on the behaviour of the protagonists. At the same time, personality conflicts can coexist with a professional and civilised work environment. Personality conflict or relationship breakdown are at the heart of almost all workplace bullying cases. 4. Workplace Bullying is a safety issue One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue. There are 2 bases for my view. The first is a matter of principle; the other driven by more pragmatic considerations. 5 Productivity Commission 2010, Performance Benchmarking of Australian Business Regulation: Occupational Health & Safety, Research Report, Canberra, 299 7
  • 8. First and foremost, workplace bullying is illegitimate and destructive behaviour. It is illegitimate whether an injury is caused or threatened. It raises questions of how we treat each other at work. A workplace free of bullying requires a standard of behaviour, of civilised discourse and interaction. Workplace bullying is illegitimate in much the same way that unlawful discrimination is. Both can cause a compromised health and safety environment. Both can cause catastrophic damage to health but it is only bullying that remains pigeon-holed in the occupational health and safety and personal injury sub-culture. The pragmatic reason is this: confining workplace bullying to the realms of OHS hasn’t worked and it won’t work. For far too long, we have accepted a system which entrusts the regulation and policing of this issue to state based regulators. Workplace regulators and OHS professionals are often overwhelmed by the volume of workplace bullying complaints. They quickly become jaded by workplace bullying. They suffer “compassion fatigue”. It is too easy to not investigate or reject a bullying complaint as based on, e.g. a personality conflict. In Victoria, we have WorkSafe. Like all other state funded regulators, it is simply not resourced sufficiently to manage the volume of workplace complaints it receives. It investigates a tiny fraction of complaints6. Although it achieved a successful high profile prosecution in the Brodie Panlock case, the employer and the bullies were fined 4 years after Ms Panlock committed suicide. Even in that case, I understand that there may have been a reluctance within the agency to pursue that matter. We have accepted a second rate system for too long. 6 Rachel Wells, ‘Most workplace bullying claims fall short’, The Age (Online) July 24 2011 < http://www.theage.com.au/victoria/most-workplace-bullying-claims-fall-short-20110723-1hub7.html> 8
  • 9. Those who have represented victims of unlawful workplace discrimination will be all too aware that it too has a corrosive impact on the mental health of employees who experience it. Quite sensibly, we do not require proof of a risk to health or safety for the legal system to provide redress and protection under anti discrimination law. I advocate law reform that allows victims of workplace bullying to take a complaint to a tribunal or court well before the situation has escalated to the point of irreversible damage to an employee’s health. We need a system that allows early intervention that maximises the chances of health and preserving the employment relationship. I suggest that consideration be given to amending the Fair Work Act to allow this to occur. The Fair Work Act has national reach. A civil remedy provision proscribing bullying could be introduced. An affected person could bring a case. Either Fair Work Australia, the Federal Court or Federal Magistrates Court could have a role. Broad remedial powers would be appropriate. Regulators could have a complementary role. For example, the Fair Work Ombudsman currently can initiate proceedings in respect of unlawful workplace discrimination as can employee victims. I see no reason why a similar approach could not be taken in the case of workplace bullying. OHS laws impose obligations on employers to provide employees with a safe workplace so far is reasonably practicable. When bullying is sufficiently serious, a complaint can be made alleging the employer has failed in its obligations. Once a complaint is made, an investigation may take place. If the outcome of that investigation identifies a breach of OHS laws, a prosecution of the employer and relevant employees may follow. This process can take several years. The process of investigating bullying complaints is slow and ineffective as it is conducted by 9
  • 10. workplace inspectors who are also monitoring the compliance of OHS legislation more widely. Additionally while there are implications for the employer if found to have breached OHS laws, there are no legal remedies for the victim of the workplace bullying which affects the efficacy of pursuing workplace bullying under OHS legislation. In addition by the time the OHS process unfolds, the damage to a bullying victim has been done, often irreparably. 5. Employers should address Workplace Bullying by codes of conduct and policies The era of the workplace policy or code of conduct being the key to managing workplace culture is well and truly over. David Jones had a state of the art policy on sexual harassment when it faced serious allegations about the conduct of its then CEO in 2011. Indeed, in most cases of harassment and bullying that I deal with there is a terrific workplace policy prohibiting the conduct my client alleges. It is one thing for employers to purchase a vanilla workplace policy off the internet or from law firms or consultants. It’s altogether another to actually manage workplace culture. The gulf between culture and policy can and is often significant. Bridging that gulf requires sustained hard work and enlightened management. There are several other factors that militate against reliance on workplace policy and codes of conduct. They relate to compliance. First, many employers now have their workplace policies “legalled” so that the policy can’t be enforced by employees. It is standard for such policies to be expressed to apply to the employee but at the same time to state that they do not form part of the 10
  • 11. employee’s contract of employment. Such provisions have been common in the aftermath of Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120, in which the Federal Court found that a policy prohibiting workplace bullying was an enforceable term of the employee’s employment contract and awarded substantial damages for breach. Secondly, in larger workplaces, it is left to human resources managers to effectively police workplace policies. What happens if the alleged bully is the boss? Self preservation for the beleaguered human resources manager dictates the answer here. Very little. Or worse, the complainant is removed or sacked. And for those who suggest that this must occur rarely, I want you to reflect on some of the “strong personalities” who have or continue to lead companies, schools, political parties, sporting organisations, religious institutions and so on. Is it possible that some of them are or were bullies? There is a fundamental ambivalence about bullying in our society which deserves a far more profound analysis than I can provide today. When we are confronted with strong examples of bullying, we tend to abhor it. At the same time, we reward many of those who are particularly adept at perpetrating it. The kid in the playground with all the tonka toys and kicking sand in other kids’ faces may grow up to be the CEO or leader of a church or political party. 6. Workplace Bullying should be criminalised Following the tragic suicide of Brodie Panlock in 2010, new provisions were introduced into the Crimes Act 1958 (Vic) to try and incorporate serious bullying 11
  • 12. behaviour into the offence of stalking. The Crimes Amendment (Bullying) Act 2011 (Vic) was introduced to expand the definition and scope of stalking under the Crimes Act 1958 (Vic). The definition of stalking under s 21A was expanded to include among other things making threats to the victim, using abusive or offensive words to or in the presence of the victim, performing abusive or offensive acts in the presence of the victim and directing abusive or offensive acts towards the victim7. A course of conduct which the offender ought to have understood would be likely to cause the victim harm including self-harm was also included in the definition8. The maximum penalty for stalking is 10 years imprisonment and therefore provides a punishment to the perpetrator of bullying if found guilty, although not a direct remedy to the victim. Similar amendments were also added to the Stalking Intervention Orders Act 2008 (Vic)9 and the Personal Safety Intervention Orders Act 2010 (Vic)10, so that the three Acts are consistent and victims of serious bullying can make applications for the issue of intervention orders. In recent response to the Federal Government Review into Workplace Bullying, the ACTU has suggested that it would support the criminalisation of workplace bullying11. Others have called for Brodie’s law to become a national law. I couldn’t disagree more. 7 See Crimes Act 1958 (Vic) s 21A 8 Crimes Act 1958 (Vic) s 21A (3) 9 See Stalking Intervention Orders Act 2008 (Vic) s 4 10 See Personal Safety Intervention Orders Act 2010 (Vic) s 10 11 Australian Council of Trade Unions, (ACTU) Submission To the House Standing Committee on Education & Employment, Inquiry into Workplace Bullying, 4 July 2012, 8 12
  • 13. Criminal law should only intrude into the workplace in extreme situations. Most bullying cases are not criminal matters. Those bullying cases which involve actual or threatened assault do not require new criminal laws. Existing provisions of the Crimes Act 1958 (Vic) will suffice. While Brodie’s law has been symbolically important, at a practical level it has been next to useless. It does not apply to 95% of bullying situations. Even if it was amended to change that, it is deeply flawed. To give but one illustration of its flaws, imagine you are an employer and an employee turns up to work on Monday brandishing an intervention order prohibiting another employee from going within 100 metres of him or her. Just as state based OHS bureaucracies are ill-equipped to manage bullying compliance, our police forces have scarce resources and will not deploy them to deal with workplace bullying. 7. The Way Forward The Federal Government is currently conducting a review into bullying in the workplace and the terms of reference are directly addressed at “gaps that should be addressed in the interests of enhancing protection against and providing an early response to workplace bullying, including through appropriate complaint mechanisms”12. Before I am criticised for advocating the expansion of the “nanny state”, can I remind you of some of the protections currently enjoyed by employees under federal law. Employees are protected from: 12 Commonwealth of Australia, Inquiry into Workplace Bullying – Terms of Reference, Parliament of Australia < http://aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees? url=ee/bullying/tor.htm> 13
  • 14. (a) being misled about an aspect of workplace bargaining; (b) being exposed to undue influence or pressure to accept a guarantee of annual earnings; (c) being subjected to a false or misleading representation about workplace rights; and (d) punitive retaliation for making a complaint to the employer about an aspect of their employment under the Fair Work Act. Indeed, an employee who complains that another employee is being subjected to bullying is protected from adverse action. The bullying victim has no such protection. The political climate is ripe for a push for significant law reform in this area. It is evident that the current legal system does little to afford victims of workplace bullying with effective options to address the situation. In recent months, we have heard a considerable amount of rhetoric and commentary about the supposed drain on productivity attributed to Australia’s workplace relations system. Virtually none of this commentary is evidence based. It grossly over- simplifies the nature of productivity and the constituent parts that are involved in affecting our productivity performance. In the case of workplace bullying, the science is in. The Productivity Commission reported on the issue in 2010. Its report confirmed that workplace bullying is a multi billion dollar productivity-sapping industry. Employer organisations and CEO’s are far more comfortable in advocating the removal of penalty rates or the benefits of individual contracts. Why? 14
  • 15. An investment in an educational campaign about workplace bullying, together with the legal reform, I suggest would reap a huge dividend by saving millions in lost productivity, healthcare costs and social welfare payments. It would enhance managerial skills and improve the quality of life of employees. I look forward to a modern effective approach to workplace bullying in this country. Bring it on. 15