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Banning Bullying - but what is it?

Banning Bullying – but what is it?

Published on April 1, 2011 by Peter PunchPeter Punch

The recent initiative by the new Liberal State Government in Victoria to introduce the “Crimes Amendment (Bullying) Bill 2011 has drawn attention again to the apparent epidemic of “bullying” in Australian workplaces and the need for a legislative response to this spreading disease.

The Bill appears to be a response to a particularly horrific case in 2009 involving a young woman who committed suicide after a relentless campaign of insulting and abusive behaviour towards her by her work colleagues at a Melbourne café. The other workers and the café owner were all prosecuted under Victorian OHS law and total fines imposed were $330,000 ($250,000 of which was imposed on the employer).

The Bill’s intention is to make this type of conduct not just amenable to severe financial penalties but also to custodial sentences in extreme cases. The relevant amendments to the Victorian Crimes Act are made in relation to the offence of “stalking” and of particular significance is that the offence is being extended to the following conduct: “acting in any other way that could reasonably be expected (i) to cause physical or mental harm to the victim, including self harm; or (ii) to arouse apprehension or fear in the victim for his or her own safety or that of any other person”.

This initiative leads me to make the following observations.

1. I have always been concerned about the definitional difficulties in relation to the concept of “bullying”. The type of conduct that was established to have occurred in the Melbourne café case is called “bullying” but to me it is just the latest publicly reported instance of what used to be called “bastardisation” (and there have been a number of cases of this type of conduct before the courts, which have been prosecuted in the area of OHS law).

2. But if one consults web sites of OHS authorities such as WorkCover NSW one finds that the concept of bullying covers an extraordinary range of workplace conduct – “Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. Thus we can see that the expression “bullying” covers a very broad spectrum of (mis)behaviours – from what used to be known as “bastardisation” to (perhaps) snide remarks that are meant to emotionally wound (as long as they are repeated). Definitional confusion is never a good thing.

3.  The use of the expression “bullying” has become rife in workplace disputes in this century. I have been in private legal practice for almost 28 years and I do not ever recall hearing anyone complain about being “bullied” in the workplace until about 7 or 8 years ago. What does this mean? Bullying did not take place in workplaces before then? Bullying has always been there but people did not complain? Is it a Generation Y concept? These of course are questions for sociologists, not lawyers.

4. For legal and industrial relations practitioners however the particular considerations that arise in bullying cases are, in my opinion, these.

(i) So may people have cried “bullying” so often in recent years that industrial tribunal members are becoming rather sceptical when presented with a claim based on this catchcry.

(ii) Because of the definitional uncertainty of “bullying” the use of the expression can get in the way of actually working out objectively what has occurred in the particular workplace – hence it is always important to get past the emotion and isolate all the relevant facts

(iii) The expression is most often (although not exclusively) called in aid by an employee as against a supervisor, in which instance there is always the issue as to whether what is happening is bullying or proper management supervision of an underperforming employee.

(iv) Because bullying is almost invariably a course of conduct (usually over many months), rather than a one off event, a claim of bullying is always hard to establish without a consideration of the minutiae (even day by day) of the alleged bullying conduct – hence the keeping of a journal of events by the affected employee is a vital (although rarely employed) evidentiary tool. In Bailey v Peakhurst Bowling Club [2009] NSWDC 284, the claimant kept a diary, and ultimately won her case. But the advisability of record keeping applies not just to employees but also to supervisors: if a supervisor suspects that an employee may raise a bullying complaint, the supervisor should keep records of meetings and relevant events.

(v) More and more employers are establishing “Bullying and Harassment” Policies (as they had to do in the area of sexual harassment in the last quarter of the last century) – and while that will assist employers in defending claims, any policy is only as effective as the commitment of the people implementing it.

Because of the definitional problems referred to, bullying cases can arise in five different forums: personal injury claims, “industrial” claims (eg unfair dismissal or adverse action claims), discrimination claims, OHS prosecutions and criminal liability. A minefield indeed not only for those involved, but also the advisor. The situation seems unlikely to change, unless courts or legislators give us some tighter definitional guidance.

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