- WHAT CONSTITUTES BULLYING
WorkSafe defines workplace bullying as “repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. Must be actual behaviour, and must create an actual risk to health and safety. It is important to note that to satisfy the WorkSafe definition of bullying it must be repeated, not just one incident
WorkSafe says workplace bullying includes:
– verbal abuse
– excluding/isolating employees
– psychological harassment
– assigning meaningless tasks
– impossible assignments
– changes to rosters to deliberately inconvenience
– withholding of information
– sexual harassment
– actual violence
- 2. WHAT IS NOT BULLYING?
n Setting performance goals, standards and deadlines;
n Allocating work to a worker;
n Rostering and allocating working hours;
n Transferring a worker;
n Deciding not to select a worker for promotion;
n Informing a worker about unsatisfactory work performance;
n Informing a worker about inappropriate behaviour;
n Implementing organisational changes;
n Performance management processes;
n Constructive feedback;
- 3. WHAT CAN BE DONE?
Like sexual harassment in the 1970’s, workplace bullying is emerging as a real issue within workplaces. Slowly employers, governments and unions are realising that more has to be done to combat this issue. Unfortunately, as with sexual harassment in the early 1970’s, there is no uniform approach to dealing with the issue. While every state now has an Equal Opportunity Commission that is expressly charged with prosecuting issues of sexual harassment, there is no clearly defined jurisdiction for bringing claims of workplace bullying. As we have just seen in the preceding section there is no single definition of ‘workplace bullying’. As such, any claims that arise from this form of activity are related to the effect the bullying activity has on the worker rather than addressing the behaviour itself. This situation is unfortunate (and will ultimately be found to be untenable) as all the responses to workplace bullying are reactive rather than proactive. The most effective and immediate way of dealing with the issue is at the workplace level to stop bullying before it even starts.
Depending on size of the workplace, there may be a bullying procedure, or an OH&S procedure.
If not you may be able to follow the dispute resolution procedure in your workplace’s collective agreement, if there is one. Such a procedure will normally involve raising the issue with a more senior manager, with procedures to escalate if not resolved.
Fair Work Australia
Your workplace’s policies or procedures may provide recourse to Fair Work Australia for conciliation and/or resolution. Dispute resolution procedure in EBA probably will, if a union EBA.
AIRC will hold informal conciliation, if cannot resolve the matter, may be empowered to arbitrate.
Formal hearing, evidence, opening & closing submissions.
Eg MEAA V ABC March 06– allegations by former exec producer of Inside Business that bullied by Vic news editor Marco Bass
Commissioner Smith heard matter as incidental to dispute re transfer from position
If you are dismissed after being bullied, may have access to unfair dismissal (workplace of more than 100 employees, not dismissed for “operational reasons”, not a temporary employee).
Then can raise issues of bullying and possibly win reinstatement or compensation.
If bullied to the point where can’t go on and resign, if eligible to file an unfair, could allege constructive dismissal.
Access to UD severely limited by WorkChoices amendments at the end of last year. However McCarthy & Mayhew argue that the new provision that you cannot be unfairly dismissed if your employer dismisses you for operational reasons means that bullying may be reduced – traditional path to force someone out of an organisation, now you simply have to give operational reasons, simpler to get rid of someone
– ANTI DISCRIMINATION LAWS
Illegal to discriminate against an employee on certain grounds.
Incs race, sex, religion, disability, age, breastfeeding, industrial activity, lawful sexual activity, marital status, parent/carer status, physical features, political belief/activity, pregnancy, sexual orientation, personal association with someone with any of the above attributes.
If bullying based on these grounds, could take a claim at HREOC or EOCV.
EOCV – make written complaint, investigator investigates, then either dismissed or conciliated, if not resolved go to VCAT
HREOC – make written complaint, complaint assessed, dismissed or conciliated, Fed Court or Fed Magistrates Court
McKenna v State of Victoria
McKenna v State of Victoria  VADT 83 (1 June 1998) – here
McKenna involved a sexual harassment claim by Senior Constable Narelle McKenna under the Equal Opportunities Act (Vic), with the target of bullying being awarded $125,000 in general damages for distress, psychological injuryand hurt feelings.
The Victorian Anti Discrimination Tribunal found that McKenna’s employer (the Victoria Police) and three of its employees had been responsible for recurrent discrimination and that she had been sexually harassed by a supervisor. The Tribunal considered that bullying was particularly egregious after she complained of harassment. Consistent with the catalogue of abuses highlighted earlier in this note, McKenna had been singled out by senior officers who placed memoranda with negative remarks about her honesty on her personnel file, upgraded a disciplinary sanction without notice and took extraordinary disciplinary action despite knowledge that she had complained about disciplinary abuses.
The unfortunate police officer suffered a breakdown but did not resign. The Tribunal’s report was scathing, noting that the bullying was “initiated, supported or endorsed at high levels” and that the Victoria Police had clearly been reluctant over several years to meaningfully implement its own anti-bullying and equal opportunity policy.
The Tribunal’s decision was upheld by the Victorian Supreme Court in State of Victoria v McKenna  VSC 310.
– COMMON LAW
Nikolich V Goldman Sachs JB Were – Justice Wilcox of Fed Court June 06 awarded $515K damages to employee for past & future loss of income and general damages for breach of K
Former financial adviser developed depressive disorder and was terminated.
Argued employer breached his employment K by failing to follow procedures in its “Workng with Us Policy” – inc policy V bullying
Found policy was legally binding on e/er as part of employment contract
Naidu V Group 4 Securitas
NSW Supreme Court Justice Adams March 06 awarded $1.9 million in damages for breach of contract
Former security guard – suffered post traumatic stress disorder, depression – subject to physical assaults, indecent exposure, racist & sexist verbal abuse, financial threats & extreme unpaid hours – hasn’t worked since
Implied term of employment K that wouldn’t be intimidated by physical or verbal abuse by persons with whom required to work, nor to be subject to personal or racial vilification (READ CASE).
– CIVIL/CRIMINAL LAW
Apply for intervention order at Magistrates Court – usually for family violence (eg Lance Whitnall V his brother) – civil, but becomes criminal if breached
Have to convince Magistrate being stalked – stalking is repeated behaviour that makes you fear for your safety – need to have made it clear behaviour not wanted
Court can order that the behaviour cease, that the person have no contact with you, that they stay away from your home, work
Get them charged by police with criminal offences of assault, unlawful threats