Professional Update - Vol 12 No 3 - May/June 2002
By Karinda Flavell, Membership Liaison Officer
Workplace bullying
Though there have been no large scale studies into the extent of bullying in
Australian workplaces, anecdotal evidence from agencies dealing with victims
of bullying, smaller studies and overseas research all indicate that it is a
significant problem.
In a 12 month period the Victorian Workcover Authority received 542 claims
where the injury was harassment or exposure to workplace occupational violence.
During the same year the Authority received a further 557 claims of injury due
to assault. The estimated costs of bullying to both employers, and the economy,
are substantial.
A model was developed to estimate the cost of workplace bullying based on a
very low 3.5 percent prevalence rate. It was found that the cost to the
Australian economy is likely to be somewhere between $6 billion and $13
billion per annum.
The cost of workplace bullying to the victim is of even more concern.
In one study 75 percent of victims of long term bullying displayed symptoms
of post-traumatic stress disorder.
Despite evidence that workplace bullying is destructive to employees,
employers and the economy, it has only recently become an issue being
researched and explored within Australia.
What is workplace bullying?
Though there are many common definitions of workplace bullying, there is
no single statutory or universally accepted one. This exacerbates the difficulties
of preventing and managing the problem.
The public comment draft of the Victorian Workcover Authority’s Proposed
Code of Practice for the Prevention of Bullying and Violence in the Workplace,
contains the following definition of workplace bullying:"Workplace bullying is
repeated, unreasonable behaviour directed toward an employee, or group of
employees, that creates a risk to health and safety."
The draft offers the following as examples of bullying behaviour:
Verbal abuse
Excluding or isolating employees
Psychological harassment
Assigning meaningless tasks unrelated to the job
Giving employees impossible assignments
Deliberately changing work rosters to inconvenience particular employees
Deliberately withholding information that is vital for effective work performance.
Bullying behaviour may also involve the use of a system of work to bully an employee.
Workplace violence is also included in the proposed code of practice.
It is important to recognise the repetitive and systemic nature of bullying behaviour.
Research conducted in Sweden found bullying behaviour to be that which is repeated on a regular basis for a period of six months or more. An Irish Taskforce on Workplace Bullying found that bullies tend to operate over a long period of time, often with minor actions which accumulate to create a hostile work environment.
Many studies link the prevalence of bullying to characteristics of workplace organisation. Several factors appear influential, including workload, organisational culture, managerial styles, marginalisation and alienation. Internal change, budget cuts, employees without relevant skills being moved into management, and restructuring are all contributing factors. Biabik (Cited in Victorian Trades Hall Council, 2002) noted that "the organisational chaos that typifies many of today’s rapidly growing, downsizing and merging companies is an ideal environment for bullying behaviours."
Legal remedies for workplace bullying
Legal remedies are only one strategy in what needs to be a multi-faceted approach to the problem of workplace bullying. Awareness raising and education, training and publicity all need to be an integral part of any effort to address the issue. Legal remedies, however, are essential to assist victims and to prevent workplace bullying in the future.
There are many pieces of existing legislation that prohibit behaviours that might be constituted as workplace bullying, however, none are specifically targeted, or specifically address, the issue of bullying.
Criminal Law
Workplace bullying could be a crime if it amounts to assault, or threat of assault or involves injury.
Unfair Dismissal
Unfair Dismissal provisions within the Workplace Relations Act 1996 (WRA) (Commonwealth) are relevant to workplace bullying. A person dismissed on the grounds of bullying behaviour can apply to the Australian Industrial Relations Commission (AIRC) for unfair dismissal, as can an employee who has been dismissed as a result of bullying.
Victims of bullying can access remedies for unfair dismissal when termination may constitute an act of bullying, or where they have been terminated after making a complaint about bullying. An employee who leaves employment because the circumstances become unbearable may also apply for unfair dismissal on the grounds that the termination is a "constructive dismissal".
The remedies available through unfair dismissal provide victims of bullying with some compensation, and act as a warning to employers and thus are a preventative measure to some extent. They are limited, however, in that they are reactive – they only provide compensation once the employment relationship has been terminated.
Anti Discrimination Legislation
Employees are often bullied because of a particular characteristic, i.e. race or sex. Thus anti-discrimination legislation can be very important. Legislation exists at both the Commonwealth and State level to address issues of discrimination. The Commonwealth legislation (three separate acts relating to race, disability and sex) prohibits both discrimination and harassment related to the relevant characteristic. The Equal Opportunity Act 1995 in Victoria prohibits discrimination in employment on the basis of the following attributes; age, carer status, impairment (disability), industrial activity, lawful sexual activity, sexual orientation, marital status, parental status, physical features, political belief or activity, pregnancy, race, religion, sex, personal association, gender identity, and breastfeeding.
In a recent NSW case a prison officer was victimised and harassed because of her sex and race. The employer defended the actions of her supervisor (the bully). The employer was ordered to pay $47,500.
The remedies available under anti-discrimination legislation can be accessed whilst the employment relationship still exists, making this avenue slightly less reactive than unfair dismissal remedies. This remedy is limited, however, not only to people who have the specified attributes, but to bullying based on discriminatory grounds.
Occupational Health and Safety Legislation
Occupational Health and Safety legislation exists in each state. Section 21 (1) of the Occupational Health and Safety Act 1985 (Victoria) states that "an employer shall provide and maintain so far as is practicable for employees a working environment that is safe without risks to health". Health includes both physical and mental health. Employers have a number of duties under the act including providing adequate "supervision, instruction, information and training necessary for employees to do their work safely" (Victorian Workcover Authority, 2001, p16), and to consult with an employee who is appropriately trained and acts as an occupational health and safety representative.
Despite (reasonably) comprehensive legislation, and the number of Workcover claims caused by bullying or harassment, there have been very few cases where employers have been prosecuted for contravention of the Act over bullying. The majority of cases which have gone ahead have involved physical violence. A Queensland paper on workplace bullying noted that:
"Workplace bullying cases are often difficult for Workplace Health and Safety Inspectors to investigate, because they involve how people relate to each other. This often requires specialised expertise that the majority of inspectors do not possess" (Queensland Workplace Bullying Taskforce, 2001, p33). The legislation and authorities governing occupational health and safety in Australia have not, to date, dealt specifically with workplace bullying – with the exception of some educational materials. In an effort to do so WorkSafe, a division of the Victorian Workcover Authority, has drafted a Code of Practice or the Prevention of Bullying and Violence in the Workplace. The Code of Practice is not mandatory and relies on the existing Occupational Health and Safety Act 1985 for legal status.
WorkSafe has stated that "the proposed code is intended to clarify the employer’s duties in relation to the control of bullying within the workplace" (Victorian Workcover Authority, 2001b). The code of practice will also provide Occupational Health and Safety Inspectors with a clearer basis for raising concerns with employers. It remains unclear to what extent inspectors will be trained and equipped with resources to address issues of bullying and, if need be, prosecute employers.
References:
Queensland Workplace Bullying Taskforce (2001) Workplace Bullying: Issues Paper
Victorian Trades Hall Council (2002) Submission on The Prevention of Bullying and Violence in the Workplace (Public Comment Draft) Melbourne
Victorian Workcover Authority (2001) Proposed Code of Practice for the Prevention of Bullying and Violence in the Workplace
No comments:
Post a Comment