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Surviving, and beating, workplace harassment

Date

Kathryn-Magnolia Feeley

Victims of workplace bullying have a far wider range of legal avenues to protect their rights to work safely than may be apparent, including international human rights law.

Bullying often leaves its victims with a feeling of intense fear, helplessness and horror of the workplace.

Bullying often leaves its victims with a feeling of intense fear, helplessness and horror of the workplace. Photo: Joe Castro

A toxic workplace is a dangerous workplace. When bullying is tolerated or has become a part of a workplace's culture, that workplace is negligent in its responsibility to protect the safety of staff. The employer is then liable to pay you compensation if you are injured as a result of working in such a toxic environment.

Here's a recent case of an Australian workplace falling foul of the law for failing to prevent bullying. Five men had grabbed a 16-year-old factory worker and wrapped him in cling wrap from neck to feet, shoved him into a trolley, and then pushed the trolley to the edge of a four-metre hole. These ''workmates'' then gagged the boy, smeared sawdust and glue on him, and then turned a fire hose on him. Sometime later, the foreman cut him loose. The managers said nothing to the bullies; they didn't see a problem.

If a gang at work conspires to injure you, they may be committing a serious criminal offence - conspiracy to injure - in addition to bullying. 

That culture of initiation and a ''bit of fun'' is bullying. The boy who suffered from those injuries eventually received compensation from the company.



His was an obvious workplace injury, but some bullying involves what is known as ''symbolic violence''. It is subtler, but as dangerous and destructive as the more obvious tactics of bullies.

Workplace bullying often leaves its victims with a feeling of intense fear, helplessness or horror of the workplace. The most common reactions to bullying trauma are flashbacks and a constant sense of reliving the distressing experience.

Bullying is not your ''perception'', nor is it merely the fact that some label you as ''sensitive''. It is a power play: bullies like their victims to know that they, the bullies, have the power and they are smug in their knowledge that you will do nothing about it.

However, your workplace should not be a battlefield. You have the right to be safe. Australian laws, as well as the United Nations' human rights charter, enshrine workplace safety.

One reason workplace bullying victims find it difficult to seek help is they are afraid they will be seen as a weak person who is unable to cope. Yet research shows that victims are usually ''competent, successful, confident and qualified, in contrast to bullies who are weak, jealous and lacking in confidence''. Bullies seek to weaken their victims through one-on-one tactics to break the victim's spirit. Co-workers who may be jealous of the victim could also collectively act in mobbing activities as sycophants of the bully to weaken or even destroy the victim. If a gang at work conspires to injure you, they may be committing a serious criminal offence - conspiracy to injure - in addition to bullying.

Public servants

Following is an extract from the Australian Public Service Commission's workplace harassment guidelines. It is, no doubt, typical of the defence usually used by governments and corporations.

Workplace harassment must not be confused with legitimate comment and advice (including relevant negative comment and feed back) from managers and supervisors on the work performance or work-related behaviour of an individual or group. Feedback on work performance or work-related behaviour differs from harassment in that feedback is intended to assist staff to improve work performance or the standard of their behaviour.

You are entitled to ''quiet enjoyment'' in your workplace. The UN enshrines safe and healthy working conditions. Workplace injuries that are caused by harassment are a result of unsafe and unhealthy working conditions.

If you are bullied or harassed while working in a government department in any country that is a member of the UN, consider invoking article 7 of the International Covenant on Economic Social and Cultural Rights. If the government does nothing, it will have breached its UN obligations.

You must inform the most senior official possible (the prime minister, department head, etc). It is important that you, the injured person, are not swept sideways to a ''harassment awareness officer'' to resolve the matter. These officers at usually attached to human resources teams and their job is to ensure that staff have the mandatory training and do not make waves by ''going to the top''. In fact, it is forbidden in some large organisations for employees to do so. However, those who ignore that directive and go directly to a minister or department head are given priority attention, so as to avoid a costly court case.

Any government employee in a country that is a UN member can rely on article 7, which says:

The states to the present covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular … safe and healthy working conditions.

Therefore, injuries caused by workplace bullying or harassment in a government department that are ignored by ''the top'' will result in that particular country breaching its UN obligations.

Australia's federal World Health Organisation Act says: ''Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.'' The act obliges Australia to attain the objectives of the WHO - that is, for all people to attain the highest possible level of health. Workplace bullying and its subsequent injuries therefore contravene the objectives of the WHO, of which Australia is a member. This argument can be employed if you are in the armed services, a public servant or an employee of any other government organisation. And remember: if ''the top'' is made aware of the bullying behaviour and its consequences, the person who reports the behaviour is less likely to be victimised.

Kathryn-Magnolia Feeley is a Canberra lawyer. This article contains edited extracts from her book Workplace Bullying Survival (Smashwords, 2012), which describes alternative legal avenues for bullying victims.

kathryn@ozvis.com.au

7 comments

  • Genuine bullying in the form of psychological abuse through denial of work, attacks on character, excessive criticism etc, usually has its desired objective - that of destroying the confidence of the victim. That same person is hardly likely to have the capacity to take legal action! Bullying cultures work in an organised fashion from the top down. Bullies get away with it because they know they have support from the top for an y lie they might spin that appears to support the overarching organisational objective. Coordinated networks of lies are almost impossible to get around. The advice that there are other avenues of redress seem naiive in the extreme to me, even if victims had the financial resources - who supports them emotionally?

    Commenter
    PushPa
    Location
    Melbourne
    Date and time
    February 05, 2013, 1:23PM
    • When Worksafe require documented and witnessed evidence of repeated incidences to even bother investigating and then don't because the employer 'dotted his Is and crossed his Ts" - how will the UN, WHO or anyone else help?

      I was verbally assaulted by my CEO for daring to respectfully give invited feedback that we had a problem with low morale and bullying (ironic in retrospect!) and for making a few simple suggestions to change things. Despite receiving a great performance review only a week prior, I was called worthless and torn down verbally for half an hour, in full view of anyone who passed his office window. I had held this person in the highest regard and was devastated.

      Foolishly I made a workcover claim and have since been undermined, intimidated and harassed by the workcover agent to 'get over it' and 'get a new job'. They had no intention of assisting me in returning to the workplace, or righting the wrongs, despite our discovery that this was not the first time it had happened. I have been sent to "Independent" Medical Examiners who amend their reports to the agent until it says what they want. My employers were never taken to task for their actions, despite admitting that my statement was accurate.

      I have lost my self confidence, I fear confrontation and I have now learned that employers hold all the power and employees have none. If you can't show a physical injury and are not suicidal, then you're 'fit for alternate duties' with a new employer and you're out on your ear.

      Bitter? Of course. Why shouldn't I be? If I had my time over, I'd take matters into my own hands instead of trusting a government funded organisation and an insurance company to help me.

      Commenter
      Shadow
      Location
      Melbourne
      Date and time
      February 05, 2013, 1:38PM
      • Pfft...

        People need to take a teaspoon of cement and 'harden up'.

        If any of my workers complained after a bit of mucking around, I'd fire them as soon as I came up with a reason that I could not be proven was related to them complaining. (It's easier than you think).

        Commenter
        Good to be King
        Location
        Ivory tower
        Date and time
        February 05, 2013, 1:52PM
        • Not every claim of bullying is reasonable: there are those who use accusations of bullying to confound legitmate attempts to remediate poor performance. The quote from the APSC's handbook is introduced in a derogatory way, yet is quite valid and justified in the light of the behaviour of the malingerers.

          It seems Ms Feeley is a hammer, so sees everything as a nail. The world is more complex than that.

          Commenter
          Mgr
          Date and time
          February 05, 2013, 2:30PM
          • There is no place for bullying in any workplace, but I disagree with much of the advice provided here. The article is written from a lawyer's perspective, rather than someone genuinely committed to helping victims of unacceptable behaviour. To quote UN conventions and to suggest victims write to the Prime Minister is foolish and will distract victims from the more timely and effective resources every good organisation has in place to prevent and manage such issues. To summarily dismiss the role of harassment officers in one sentence is ridiculous, as is the implication that feedback on workplace performance is a 'defence' of workplace bullying. I fully agree with Kathryn's encouragement of victims and witnesses to report workplace bullying, but they have many more options than writing to the Prime Minister or department head. Perhaps the frequent reference to compensation in this article betrays the writer's narrow view of the world. Workplace bullying has a hard legal edge (more so WHS legislation than the UN), but at its heart, it is a people issue - not a legal issue. Only a lawyer would say otherwise.

            Commenter
            Paul
            Location
            Canberra
            Date and time
            February 05, 2013, 3:33PM
            • Maybe they feel their complete lack of meaningful work is a form of harassment too.

              That would open pandoras box, wouldn't it!

              Commenter
              Evanism
              Date and time
              February 05, 2013, 5:47PM
              • I think the targeting proportionately increases the higher you go up the ladder! Escalation to the top boss is not a viable solution! It is unfortunate that this is the culture in Australia! it is ruthless and relentless and reveals the deep crisis in leadership! I am surprised that Kathryn-Magnolia is unaware of this critical absence of leadership given that she is a lawyer in Canberra! Perhaps her experience is limited to academic circles!

                Commenter
                Serenatopia
                Location
                Melbourne
                Date and time
                February 05, 2013, 10:17PM
                Comments are now closed
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