Claims against employers for workplace bullying are becoming increasingly prevalent. Understanding what constitutes bullying, and how to address and even prevent it, is central to avoiding costly legal claims, writes Geoff Baldwin.
The modern workplace continually presents challenges for business owners and operators, who are trying to manage their enterprises efficiently and effectively, and so as to foster growth and profitability.
One of these challenges lies in managing staff, and in being confident that their interactions with their staff will not trigger allegations of bullying and harassment.
The speed with which concepts evolve in the modern Australian workplace is nowhere better demonstrated than by this area.
“Harassment” as a workplace concept was the first to emerge, then morphing into “harassment and bullying”, and now the common term is “bullying” simply on its own.
“Harassment” and “bullying” are, however, different things.
The concept of harassment in Australian workplaces had its genesis in anti-discrimination legislation, the first example of which was the NSW Anti-Discrimination Act 1977.
Largely focused on sex discrimination, the Anti-Discrimination Act itself made no mention of “harassment”, but the concepts gradually arose of “sexual harassment” and “sex-based harassment” as forms of unlawful discrimination committed, overwhelmingly, by men.
The former was typified by repeated and improper requests for sexual favours, with the latter being conduct which was similarly inappropriate, but not motivated by the intention of securing sexual favours.
Subsequently, the latter kind of harassment was adopted to describe inappropriate conduct toward people of a particular racial or ethnic background, or other cohorts of people protected by anti-discrimination legislation.
“Bullying” is a quite different concept, although potentially overlapping in some cases with harassment.
The stereotypical workplace “bully” is the tyrannical supervisor from Central Casting who angrily demands impossible standards of performance from subordinates, and threatens disciplinary or other adverse action against workers failing to comply.
However, the notion is somewhat more complex and broader than this, notably in that a workplace bully is not necessarily a manager, supervisor, or someone with some form of official power.
Presently, concepts are recognised of bullying between peers (people with more or less equivalent status and power in the workplace) and even “upwards bullying” by subordinates of a supervisor.
With the growth (or greater awareness, depending on your point of view) of bullying, this is the concept which now encompasses many kinds of inappropriate workplace behaviour (other than underperformance or simple misconduct).
While some forms of bullying conduct can involve harassment, it is bullying as a notion which managers and supervisors need to understand.
What does bullying involve?
Until January 2014 in Australia, “bullying” was not statutorily defined. However, policies of both private and public sector organisations, and safety authorities, had, for some time before that, articulated definitions.
In general, these have included the following essential elements for behaviour in the workplace to amount to bullying:
- The behaviour must be unreasonable
- It must be repeated
- It must create a risk to health and safety
- It must be unwelcome and unsolicited
- It must be of a kind considered by the recipient to be offensive, intimidating, humiliating or threatening, and would be so considered by a reasonable person
In January 2014, amendments to the Fair Work Act 2009, giving the Fair Work Commission the power to deal with bullying at work, took effect. Section 789 FD of the Fair Work Act, which defines bullying, distils this list down to three key elements:
- The posing of a threat to health and safety
(A detailed discussion of these amendments is beyond the scope of this present item, but it is worth noting that, although they provide wide powers for the commission to order a cessation of bullying which is found to have occurred, the awarding of monetary compensation is specifically excluded.)
Reasonable management action
Possibly the most common apprehension managers have is that some direction given to an employee about performance improvement will result in an allegation of bullying being made.
Sometimes this can generate a kind of managerial paralysis during which performance declines further, so that when breaking point is reached, the action required is much more dramatic than would initially have been needed.
The Fair Work Act qualifies the definition of bullying by saying that “reasonable management action carried out in a reasonable way” does not constitute bullying.
There is a similar provision in the NSW Workers Compensation Act 1987 (section 11A, applying to psychological injury claims) to the effect that psychological injury is not compensable if it arises out of the “reasonable action” of an employer in relation to (among other things) performance appraisal, discipline or dismissal of the employee.
How can the risk of bullying claims be minimised?
The “reasonable management action” provisions are obviously included to recognise that there are circumstances in which employers must, quite legitimately, issue directions or take action which may be resented by an employee, and which may, in some cases, actually result in emotional damage.
The key word is “reasonable”. But what is “reasonable”?
First – and most obviously – the action must be concerned with the requirements of the job. Belittling an employee for being an Abba fan or a follower of the Manly NRL side may have justifications, but could not possibly be defended as being reasonable management action.
Second, “reasonable” action is confined to the requirements of the job being done. Criticising the dress and appearance of an employee in a front-line customer service job may be reasonable, while similar action directed at a manual labourer may not (although for all workers, it is completely legitimate to require dress to be safe in the light of WHS requirements).
Third, action must be proportionate. Correction of a shortcoming in some area crucial to the performance of the work can defensibly be carried out with much greater emphasis than in relation to some failing which is only peripheral to the job requirements.
Fourth, care must be taken in the manner in which remedial action is taken. Loud and intemperate language is not called for, except possibly in emergencies. Remonstrating with an employee in the presence of co-workers is inadvisable, unless the layout of the workplace makes that unavoidable.
A final point is that the value of a properly structured performance review and improvement process cannot be overestimated. In fact, the quoted section of the Workers Compensation Act (section 11A), which is often carelessly thought of as protecting any kind of action as long as its purpose is correcting underperformance, actually uses the words “performance appraisal”, implying a systemic, rather than ad hoc, approach.
In summary, it is of course impossible to ensure that an employee might not take offence to something said, however moderate and reasonable, in relation to performance.
Similarly, no one can guarantee that an allegation of bullying will not be made.
But sticking to the job subject matter, and tailoring corrective action to the key requirements of the job and the objective seriousness of any shortcomings, will assist in minimising this risk.
Geoff Baldwin is a lawyer in the employment law team at Stacks Law Firm.