Australia: Bullying and harassment claims in the workplace – employers need to be aware of risks

The modern workplace continually presents challenges for business owners and operators who are trying to manage their enterprises effectively and to foster growth and profitability. One of these challenges lies in managing staff and being confident that interactions with them will not trigger allegations of bullying or harassment.

Speedy evolution of concepts of bullying and harassment in the workplace

The speed with which concepts evolve in the modern Australian workplace is nowhere better demonstrated than in this area. "Harassment" as a workplace concept was the first to emerge, then morphing into "harassment and bullying", and now the common term is simply "bullying" on its own. However, "harassment" and "bullying" are different things.

Forms of harassment as types of unlawful discrimination

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 A-D 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.

"Sexual harassment" was typified by repeated and improper requests for sexual favours, whereas "sex-based harassment" referred to conduct which was similarly inappropriate, but not motivated by the intention of securing sexual favours.

Subsequently, the definition of 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" far more broad and complex than the popular stereotype

"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 action or other forms of retribution against workers who fail 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.

Bullying by equals or subordinates

Presently there is recognition of the concept of bullying between peers (people with more or less equivalent status and power in the workplace) and even "upwards bullying" of a supervisor by subordinates.

With the growth in bullying claims (or greater awareness of bullying, depending on your point of view) 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.

Essential elements of bullying prior to statutory definition

Until January 2014 in Australia, "bullying" was not statutorily defined. However, both private and public sector organisations and safety authorities had policies for some time before that which articulated definitions of bullying. In general, such policies 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

Fair Work Commission acquires power to deal with bullying at work

In January 2014, amendments to the Fair Work Act 2009 took effect, giving the Fair Work Commission the power to deal with bullying at work. Section 789FD of the FW Act, which defines bullying, distils this list down to three key elements:

• unreasonableness
• repetition
• the posing of a threat to health and safety

A detailed discussion of these amendments is beyond the scope of this article, but it is worth noting that, although they provide wide powers for the Commission to order a cessation of bullying which has been found to have occurred, the awarding of monetary compensation is specifically excluded.

Employers typically wary of bullying allegations by employees

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 have been needed initially.

The FW 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.

"Reasonable management action" and minimising the risk of bullying claims

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". 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 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 it is impossible to overestimate the value of a properly structured performance review and improvement process. In fact, the quoted section of the WC 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.

Key requirements of job and objective seriousness of shortcomings

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 and harassment will not be made.

But you will minimise your risks if you stick to the job subject matter and tailor corrective action to the key requirements of the job and the objective seriousness of any shortcomings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.