Bullying is the buzzword in every government department at the moment. Ministers are preoccupied with questions such as how we stamp out bullying in the workplace and the schoolyard. Can we legislate to criminalise it, as in Victoria? Is that going too far?
Bullying and harassment are serious and systemic issues that have plagued workplaces for years. From the blatant (such as the apprentice who has the pressure hose turned on him every Friday, as part of an induction ritual) to the subtle (the boss who manipulates and contrives situations so that one employee is always excluded, never selected for training courses and never given an opportunity to progress). Bullying takes many forms and is present in almost every workplace.
Also present in most workplaces is the pervasive silence that protects the perpetrators. Many researchers have written about this silence; it's a widespread phenomenon and a largely unexplained one. Even in the public service, where there are codes of conduct and fairly robust policies dealing with workplace bullying and harassment, the issue arises again and again.
One of the difficulties lawyers face when dealing with cases of workplace bullying is translating the appalling treatment the individual endures into a legal cause of action. There is no common law or statutory claim of bullying that an individual can make. Practitioners have been forced to try to shoehorn bullying claims into some other cause of action. If there is an anti-bullying policy in the workplace, perhaps it is implied in the contract of employment, and the employee could sue for breach of contract. Bullying will sometimes constitute adverse action, but not always. If the individual has a disability or is of a particular ethnic origin, it's possibility a discrimination claim may be available. All of these causes of action, however, have always been ancillary to the bullying behaviour itself, and have often been hard to establish unless the bullying was protracted, documented in some way and caused the individual significant harm.
A good example of a successful claim run in this way is the 2005 case of Naidu v Group 4 Securitas. In this case, a security guard, Devandar Naidu, suffered serious psychiatric injuries from over five years of bullying while employed by Group 4 Securitas. Through a contract with Group 4, Naidu provided security services to a subsidiary of News Ltd. Under the contract, he was supervised by a News Ltd employee, Lance Chaloner. The evidence before the court was that Chaloner subjected Naidu to racial vilification, sexual assault and harassment, in and outside the workplace for years. Even in this case of extreme bullying, the victim had to rely on discrimination laws and a workers' compensation claim in order to seek redress for the harm he had suffered.
These legal avenues protected Naidu well. He was awarded $2 million in damages, including lost salary of $70,000 a year until the age of 65, general damages of $200,000 and exemplary damages against News Ltd of $150,000. But what if Naidu had not been Fijian and the racial vilification claim had been unavailable to him? He would have needed to rely on the workers' compensation claim as his only means of redress.
Perhaps this is why bullying and harassment have become the focus of workplace health and safety laws in recent years. These laws do not rely on individual workplace insurance policies in the same way that workers' compensation does. Workplace health and safety laws provide safety standards that are monitored by an independent regulator, which can prosecute for breaches. In the ACT, bullying has been the subject of such laws since 2008, when a code of practice for preventing and responding to workplace bullying was implemented.
A code of practice is a standard that WorkSafe ACT sets. It's the minimum standard that workplaces must meet when dealing with bullying. The code can be used as evidence of discharge of an employer's duty to do everything reasonably practicable to provide staff with a safe workplace. In the ACT, this means an employer must:
- Identify bullying risk factors.
- Assess and control the risk factors.
- Provide training to staff on how to handle bullying in the workplace.
- Encourage reporting of bullying behaviour.
- Properly investigate complaints of bullying behaviour.
- Act on outcomes of investigations into bullying behaviour.
In Victoria, ''Brodie's law'' was recently introduced in a further effort to stamp out bullying in the workplace. This legislative change extends the definition of the offence of stalking in the Crimes Act to include behaviours that are typical of workplace bullying. These changes mean it is not only employers who will be liable for damage caused by bullying in the workplace: individuals who engage in bullying are now potentially liable for criminal sanction, including up to 10 years in jail.
There has been much debate about whether a similar law should be introduced at the federal level. However, until that sort of change takes place, ACT employees will be restricted to the kind of investigation and criminal sanction available under workplace health and safety laws.
The renewed focus on workplace bullying is a timely reminder that these laws give victims a useful alternative to other legal claims. WorkSafe ACT's recent investigation into bullying at the CIT emphasises the importance of employers treating bullying seriously, and that failing to do so can lead to a very public naming and shaming process. Employees can feel safe knowing that, even if identifying other legal avenues for redress is difficult, workplace health and safety laws provide a good avenue for independent investigation into bullying complaints.
Jennifer Wyborn is a senior associate specialising in industrial relations and employment law at Williams Love & Nicol Lawyers.
In Victoria, individuals who engage in workplace bullying are now potentially liable for criminal sanction, including up to 10 years in jail.