By Michael Mead, Head of Workplace Relations Consulting Services, Ai Group
For a nation that prides itself on a right to a ‘fair go’, Australia has an arguably embarrassing record when it comes to bullying in the workplace.
According to research by the University of South Australia, when compared to 31 European countries, Australia ranked sixth highest for workplace bullying, with seven per cent of Australian workers reporting instances of bullying at work in the six months prior to the study’s publication.
Workplace bullying can have a devastating impact on its victims – something that’s now being reflected in the consequences negligent employers can potentially face. In the past year, judgements handed down around the country have resulted in damages in bullying cases being paid in hundreds of thousands of dollars – not to mention a new law in Victoria providing for up to 10 years imprisonment for serious bullying. The incentives for businesses to create firm anti-bullying policies have never been greater.
More: Watch Ai Group’s webinar ‘Boss or bully’ on giving constructive feedback and correctly handling negative performance reviews.
In safeguarding your own workplace against a potentially expensive bullying claim, what can you learn from some of Australia’s worst bullies?
Whether or not you believe there is any merit in a bullying complaint, it is never wise to dismiss it out of hand without proper investigation.
Take the case of a worker who was promoted to a new role by her employer ahead of her former manager. In team meetings, she was openly demeaned and denigrated, before being excluded from a meeting called specifically to undermine her.
Despite her complaints, her supervisor resisted measures to address the situation, dismissing her reaction as “groundless and obtuse”. The Supreme Court of NSW disagreed, finding her employer had been “negligently passive” in its response to her requests for help over two years, confirming on appeal an award of almost $340,000 for psychiatric injury.
Over a two-year period, a female labourer was shown pornographic material, slapped on the bottom, grabbed from behind, had a sex act simulated on her and told by a male colleague that he would follow her home.
In such a situation, the woman should have been able to turn to a capable manager aware of his responsibilities – but when she did complain, her supervisor responded by laughing. While eventually moved to a different area for nine months, she was inexplicably returned and the previous behaviours resumed.
The Supreme Court of Victoria accepted she was unlikely to ever work again as a result of her treatment and the severe psychiatric condition it left her with, imposing $1.36 million in damages.
Employers have a duty of care to their employees in ensuring a safe working environment. An important part of that duty is making sure your staff know what to do when they are subject to, or witness, bullying in the workplace.
If a security guard, subjected to extensive bullying at the hands of his manager over a five-year period, had been afforded such assistance from his fellow employees – who witnessed the poor conduct – he may have been saved from years of abuse, and his employers may have avoided the imposition of almost $2 million in damages.
A female sales assistant worked in a university law book shop, alone with a single male supervisor who habitually subjected her to “sarcasm, hostility and rudeness” – culminating in an incident in which he violently threw a book at her.
The sales assistant brought the behaviour to the attention of the board, which promised to take measures to improve the situation, but failed to follow through – a pattern that subsequently continued across a further five years of torment.
Eventually succumbing to a major depressive and anxiety disorder that rendered her indefinitely unfit for work, the sales assistant was awarded more than $290,000 by the Supreme Court of Victoria for loss of past and future earnings, along with $300,000 in damages.
Brodie Panlock was a 19-year-old café worker who suffered bullying six days a week for more than a year. She was spat upon and derided for her appearance, held down by her workmates, was teased about a failed suicide bid, and had rat poison left in her pay envelope, with encouragement to succeed in her next attempt at suicide.
The owner of the business was not only aware of some aspects of the bullying, but was present on occasions and sometimes condoned it.
Brodie eventually did take her own life, leading to the prosecution of her employer – who was personally fined $30,000, together with a $220,000 fine for his company – and the three responsible employees, who received fines ranging from $10,000 to $45,000.
Brodie’s enduring legacy is Victoria’s anti-bullying legislation, known as Brodie’s Law – making bullying punishable by up to 10 years in prison.
Ai Group’s members are telling us that their managers are increasingly reluctant to manage performance issues for fear of being accused of bullying.
The Fair Work Commission (FWC) has clarified that in the context of performance management – as distinct from ‘bullying’ – management actions do not need to be perfect to be considered ‘reasonable’. Offer a clear performance improvement policy to give assurance to workers about the process that should be followed and to give managers the confidence to manage.
The FWC has also indicated what ‘unreasonable’ management action might look like. In one recent case subject to an anti-bullying order, the unreasonable actions included: issuing a warning to an employee without having raised the concerns with him and considering his response; publicly humiliating the worker in front of clients; sending him a text message late at night and requesting him to respond at a meeting the next morning; and then not attending that meeting.
Ai Group is a peak national employer organisation representing businesses across Australia in a broad range of industry sectors including manufacturing, construction, defence, ICT and transport. We provide the highest quality workplace advice and operational support to help individual member companies succeed.
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