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Legal Frameworks Surrounding Bullying in the Workplace video transcript

For: Employers and managers Information seekers

Video transcript of presentation given by Cilla Robinson, Partner, Clayton Utz at Comcare's Mental Health Community of Practice in December 2019.

View the video of Cilla Robinson's presentation.

Well, thank you everybody and I must thank the organisers in particular for letting me have the first lot. I think putting the lawyer straight after the coffee is generally a good idea. So, as you're all aware, bullying is a hot topic, not just in the workplace but in school, social media, and the like. It affects all of us one way or another. And in terms of the incidence of workplace bullying, it's not that we have an increase in bullying in the workplace though it feels like that sometimes. Bullying has always been a feature of Aussie workplaces and other workplaces. But essentially, as we become and we get higher expectations in terms of having an inclusive and respectful workplace, our tolerance really for bullying behaviour has diminished, which of course, is a great thing for society.

Now, in addition to having more inclusive and respectful workplaces, we also see a higher incidence of people self-reporting mental ill health in the workplace. And that again is great from a societal perspective that people feel comfortable to bring their full self to work and to disclose, for example, if they have depression and anxiety, whatever it may be. But with that destigmatisation of mental ill health, what we see is more reporting, more awareness of employers, of people's mental health situation. And sometimes, that can lead to our reluctance to deal with performance or conduct issues because of a fear that someone's mental ill health is the reason. And so, we see with essentially avoidance or non-dealing with these issues, and that can be a real problem from an organisational perspective, and can sometimes be a reason why false bullying claims are also raised.

So in terms of what I'm going to talk about today, I want to go through what is workplace bullying, what is not workplace bullying in terms of reasonable management action. Talk about the legal risks and costs and then have some time for questions at the end. What is workplace bullying? Workplace bullying is defined in the Fair Work Act, which is the overarching employment legislation that applies to Commonwealth and private sector organisations. There are state legislation that exists for state crown employees. But essentially workplace bullying is repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to their health and wellbeing.

So in terms of unpacking that definition, it needs to be repeated behaviour it. So it doesn't necessarily mean it needs to be once a week, once a day. It can be more than once. But it does need to be repeated. A one off incident of me yelling at somebody won't by definition be bullying if it is one off. Of course, it will be unreasonable. And what we say about those kind of disrespectful behaviours is that they can often be a precursor to unlawful behaviours. So if you're a leader, then please don't ignore the one off instances of bad behaviour because those borderline behaviours can, of course, lead to repeated behaviours. So it needs to be repeated.

It needs to be unreasonable behaviour. So this is behaviour that a person may anticipate would create humiliation, offence, be threatening or victimising. But essentially, if you just use a common sense, plain English understanding of what unreasonable means, that would be your test. Now, who decides whether it's reasonable or not? It is a reasonable person test. So it's not the subjective views of the person who feels that they've been bullied that will be assessed. Now, what does it not include? It doesn't include reasonable management practices that are conducted in a reasonable way. And I'll unpack that a little bit further later on in the session.

But another thing to point out is that it applies to workers. So what that means is that we're not just talking about employees. Worker is the broad definition of people that is used in the work health and safety legislation. So it includes people like contractors, volunteers, anyone who is working within your agency could bring a bullying claim in the Fair Work Commission. Now, as I said, it doesn't include single instances but I'm going to unpack some examples of workplace bullying now in this slide. This slide just details some common examples of workplace bullying, abusive, insulting, offensive language, unjustified criticism or excessive scrutiny. That's one that we see quite often these days. And essentially, that second box on the top is micromanagement. Micromanagement absolutely can be a form of workplace bullying. And in fact, it's probably one of the more common forms of workplace bullying that we see come up.

Deliberately excluding somebody from workplace activities. This again is one that people often engage in without realising, and when we're talking about exclusion from a bullying context, we're talking about examples where you might have a small team of five where three people routinely go and get coffee together at 10 o'clock, and two are left back in the office. Now, we're not here to regulate people's friendships and, of course, you get along with some people and others, but those two people that are left back in the office nevertheless may feel excluded. And we are seeing cases and certainly complaints that have been raised in that kind of context. So we say when we're training people at an organisational level, be aware of how your behaviours may make other people feel excluded because it can be a form of workplace bullying. Withholding information that's vital or effective for performance or setting unreasonable deadlines or tasks, changing tasks, setting tasks that are either above or below someone's skill set. Again, these are all quite common forms of bullying, not giving somebody enough information to do their job. So you can see that these examples that I've included on the slide are deliberately ones that relate to the operations of the organisation and the day to day way in which work is being undertaken because these are the sorts of examples that we get and the context within which bullying claims do arise most frequently.

Spreading misinformation and malicious rumours. Essentially, this is gossiping. Gossip, whether the substance of the rumour is true or not, can absolutely be a form of workplace bullying. And I know certainly law firms are probably particularly bad at this. I don't know if the public sector is much better when it comes to workplace gossip, but this can absolutely be a form of bullying. If your colleagues are talking about you behind your back, it can be a form of group bullying. The bottom boxes have some more serious forms of bullying, and things like physical intimidation and assault, initiation and hazing are examples that we don't generally see in organisations and agencies like yours.

However, I thought it was important to include it because we still unfortunately do see those more severe forms of bullying in primary industry, for example, where you may still get the apprentice sparky being subjected to some form of initiation on their first day at the bind site. And so, it is important to acknowledge that type of bullying still does occur, albeit not hopefully in organisations like yours. And the last one I wanted to talk about was practical jokes. Not here to be the fun police, of course everybody wants to have a laugh and a joke at work. When we're talking about practical jokes in the context of workplace bullying, we're talk about a situation where the same person or group of people may routinely be the butt of every joke. So again, that can be a form of workplace bullying.

Now, before I go on, I just wanted to point out that some of these examples on this slide do include situations where there may be a group of people or there may be bystanders to the bullying behaviour. And I just wanted to make a point that last year the Australian human rights commission found that 40% of sexual harassment matters that were reported to the commission involved bystanders, and all of that 40%, 66% of bystanders didn't do anything. And these are the ones that are reported to Australian Human Rights Commission. So of course, there's a lot more sexual harassment going on that's reported. So what that means is that if we're being bystanders to sexual harassment and not doing anything, then we know from the work that we do that we are also being bystanders to bullying.

And in the context of hierarchical organisations like yours and mine, it really is very important that leaders are not bystanders. Because if you are a bystander to any bullying incident, you will be seen to be condoning that behaviour, if you don't intervene, if you don't speak up. Now, one more point in terms of bystander is to acknowledge the power imbalance that exists within workplaces. And in organisations like yours, and I've done a lot of training with Commonwealth government agencies, the APS will say, we can't call out the behaviour of the ELs. The ELs will say, we won't call out the behaviour of the SES. So it is incumbent on you to call out bullying behaviours amongst your cohort and, of course, to then call it out within groups of people that you are managing yourself.

I mentioned that reasonable management practices undertaken in a reasonable way will not be bullying. So things like conducting performance discussions, setting KPIs, normal supervisory and management decisions or operational decisions, these things ordinarily won't be bullying. The keys if undertaken in a reasonable way. So these things all absolutely can be bullying if undertaken in an unreasonable way. And what we say as employment lawyers, is that 90% of bullying claims do come up in the context of performance or conduct management. And nobody likes to receive adverse feedback. And sometimes, there will be a level of miscommunication or the way in which that performance feedback may be delivered means that the person who's receiving the feedback may feel under attack.

Now, what we know from running these cases and from dealing with employers is that the affidavit evidence of the manager and the employee, it's like they were in two different meetings often. And it will come down to things like tone of voice, body language, did the manager stand up, were they yelling, was it constructive? And so, essentially engaging in these things, performance management and management action isn't a get out of jail free card. In fact, this is where you need to be at your most alert, that you're behaving in a reasonable way. Because as I said, it is often as if the employee and the manager were in completely two different meetings if you were reading how they recalled how the meeting went.

Now, it would be remissive of me to talk about performance management and bullying claims and not acknowledge the fact that sometimes a bullying claim is a lever that is pulled by employees to say, look, I don't like how I'm feeling. I'm being bullied. Of course, people are bullied as well. Sometimes, there are false claims. Of course, many times over, there are legitimate claims as well. What I would say to you if you're a leader is that if somebody raises a bullying complaint in the context of your performance management, don't just stop everything. That complaint can be dealt with by somebody else. Separate the streams of work essentially, but don't just say stop to any conduct or performance management because somebody has raised a claim because it doesn't necessarily have to be handled in that way. It may be that somebody else within the organisation can carry on the performance or conduct stream without just stopping everything.

I've mentioned reasonable management action is not, by definition, bullying, but of course, it can amount to bullying if it's not undertaken in a reasonable way. Now, the key thing to remember is that it doesn't need to be perfect. It's not that every single performance management discussion or every single interaction needs to be gold star, HR approved, best practice, but it needs to be reasonable. So the decisions find that if something could have been done in a more reasonable way, that won't make it bullying. It doesn't need to be perfect. It just needs to be reasonable. So that ought give leaders who are having to engage in these performance management discussions some comfort that they shouldn't be scared to have these discussions. In fact, I think what we see across the board is a general reluctance to deal with issues in the workplace because people are scared of all the claims that might arise.

But what we know is that not dealing with always things as they are happening doesn't ever help the situation. It just makes it worse. It increases stress and anxiety in all the people that are involved in the situation and it will generally increase the liability for the organisation down the track. Some helpful tips in terms of how if you are a leader having these discussions, have somebody come with you to the meeting, take your HRBP with you, have somebody else there that can take notes, take notes yourself, prepare for the meeting so that you can essentially have a record of how you can recall the meeting went that will then be the counterpoint to a claim that may otherwise be made against you.

Now, I wanted to just quickly talk about this case because it was an interesting one relating to reasonable management action that was taken, but that wasn't carried out in a reasonable way. Now, this case involved a contractor, so it wasn't an employee, who brought a claim against the chairperson of the body corporate committee in relation to the way in which he was managing her. Now, the short story is that he sent her lots of emails in terms of how the work should be done. A lot of emails, incessant emails, you might say, about tasks that weren't necessarily urgent. Sometimes, they contain sarcastic or derogatory remarks. They often copied in other people. So the subject matter of all of these emails was work related. The subject matter did relate to how this woman was doing her job, but ultimately, she felt that the way in which it was being done was unreasonable. And the frequency of the emails and the tone of the emails, and also copying in other people, was the source of her consternation.

And in that case, the Fair Work Commission found that the conduct was reasonable management action. But the way in which he was doing it, the frequency of the contact wasn't reasonable. And in that case, the Commission ordered that the chairperson call her before flame mailing her. And so, that that order was by a to stop that kind of behaviour occurring. Now, popping in a bunch of other people upped the ante in terms of unnecessary humiliation of this woman in circumstances where he could have easily just picked up the phone to ask her to do something.

I'm going to now move on to the legal risks and consequences of workplace bullying. This slide captures the different courses of action or proceedings that may be brought by an employee if they experienced workplace bullying. And we don't have time to go through all of them, but very briefly, somebody who experiences workplace bullying might bring an adverse action case or an unfair dismissal case. There might be a enterprise bargaining a dispute on the basis of the breach of an enterprise agreement. Of course, a bullying claim, which I'll talk about as well. There could also be a work health and safety angle. There could be a prosecution from the regulator, or somebody might bring a workers' compensation claim. Somebody may bring a discrimination claim. There may be criminal law consequences in terms of the nature of the bullying and what has occurred, or they could bring a breach of contract case in terms of the obligations that the employer has to the employee in negligence.

But in terms of the three that I want to focus on today, where we see the most bullying issues come up, the first is the Fair Work Commission's jurisdiction to deal with bullying claims. Now, the Fair Work Commission's jurisdiction has only existed since 2014. Before that time, it was only through the work health and safety regime that bullying issues were really ventilated on the basis that an organisation had failed to comply with their work health and safety obligations to an employee.

But now, we have a special jurisdiction where employees can apply to the Fair Work Commission during their employment and seek a stop bullying order if they're feeling like they're being bullied in the workplace. The Commission can't make financial orders, so they can't give monetary compensation as part of that jurisdiction. And I think as a result of that, we often see bullying claims ventilated in other areas where somebody might actually get a chunk of change at the end of it. But we absolutely do see employees bringing claims and seeking the assistance of the Commission where they might, for example, set out parameters of how the parties should engage with each other or a charter of behaviour, or making orders as to how the bully and the person who is bullied ought interact with each other in the workplace.

Now, the Fair Work Commission's jurisdiction relates to bullying at work, and so it's important to acknowledge that the workplace does extend beyond the bricks and mortar office environment. It can include social media. Of course, if you're attending a conference and offsite, working from home, all of these things are captured within the workplace. But a bullying claim in the Fair Work Commission can only be brought during the employment, rather than a claim that could be made after the employment has ended. I'm going to now talk about work health and safety because, of course, bullying is a health and safety issue. It places a risk to people's psychological safety, and in those more extreme cases, it can create a risk to their physical safety as well.

Now, as most of you are probably aware, employers have an obligation under the work health and safety law to identify and eliminate risks to work health and safety as part of their duty of care to all workers. So that's, again, employees, contractors and the like. And to the extent that those risks cannot be eliminated, they need to be minimised to a level that's reasonably practicable. So this is essentially the broad overarching work health and safety framework that we are operating in.

Now, dealing with psychosocial risks is much harder than dealing with physical risks. If I drop a cup of coffee in the cafe, what happens? Immediately, someone gets a mop, a sign goes up, we deal with risk to our physical safety very well. Psychosocial risks, not so well. In fact, we just avoid them. And I'm sure some of the other speakers will talk to these issues later on. But from a work, health and safety's perspective, it is important to note that the regulator, Safe Work, is really focused on bullying and risks to psychosocial safety of Australian employees. And in 2018, there was the Boland report, which essentially is calling for a framework specifically in terms of the legislation to deal with psychosocial risks so that employers can have a better framework of how they should deal with all of these things, because at the moment, the work, health and safety laws just talks to risk to people's safety without unpacking it as it relates to their psychological safety.

And the Boland report also was calling for increased penalties and also prohibiting insurance being able to come in and pay for work, health and safety fines. So I make that point just to note that it is a focus obviously of employers, but the regulator is really focusing on this as well. When it comes to work, health and safety, I've mentioned already that the employer has an obligation at law to protect its staff and to keep their staff healthy. But in terms of the work, health and safety legislation, there is also personal liability. And officers have to exercise due diligence to ensure that their organisation complies with health and safety duty. So when we're talking about officers in the public sector, that is generally going to be the SES.

It becomes a little bit harder to assess officers in a corporate environment because we need to demonstrate that they're influencing the organisation. But your SES have personal liability with respect to ensuring that the agencies are complying with their work, health and safety obligations. But every worker, all of us, also has an express obligation under the work, health and safety law to take reasonable care for their own health and safety, but also how their actions can affect the safety of others. So really, if you're a bystander, if you're engaging in bullying conduct, you on its face a breaching the work health and safety obligations. So that again is something that isn't really spoken about too often in the context of workplace bullying.

Now, I mentioned that bullying has to be repeated. It can't be a one off incident, but sometimes, bullying claims are raised in the context of other claims. And I wanted to specifically mention the discrimination laws because there is often quite a lot of overlap. In terms of discrimination laws, they exist to prevent organisations treating somebody less favourably because of a protected attribute that they have. And protected attributes at a Commonwealth level are on this slide. Quite unhelpfully, there are different attributes in the state and territory law. Depending on where you leave, you may be more protected than others. For example, you have political opinion the ACT, criminal convictions are protected in some states but not others. So there is a bit of a disparate level of protections in terms of protected attributes across the country. So I've included just the Commonwealth ones on this slide.

But essentially, if you are treating somebody unreasonably because of one of these attributes, it may be bullying, it may also be then discrimination, for example, on the basis on sex, race, disability, et cetera. So the thing to remember is that a discrimination claim, it doesn't need to be repeated. If somebody can say, my manager yelled at me and it's because I was pregnant, because I'm indigenous, whatever it may be, it would enliven the discrimination jurisdiction. And of course, financial penalties can follow. In terms of discrimination claims that are brought in the state tribunals, and obviously, the framework exists in that context. So it's just important to acknowledge that there is overlap between the discrimination and bullying laws.

In terms of liability in discrimination claims, of course the person who is discriminating has personal liability. I haven't put that on the slide because that ought to be obvious. If I'm discriminating against someone, there is personal liability that I have. But it's important to also acknowledge that there is vicarious liability for the employer. And what that means is that an employer is essentially vicariously liable for the acts of its staff. And the test in terms of that vicarious liability in a discrimination case is very high. For the employer to say that they weren't liable for the acts of their employee, they need to demonstrate that they have taken all reasonable steps to have prevented the discrimination occurring. So it doesn't matter how many policies, procedures, training you have in place, it's very hard to displace vicarious liability. So what that means is that if you're engaging in discriminatory conduct, your employer will be liable, as well as of course the person engaging in the behaviour.

What is less well known is this concept of accessorial liability. And when we say being an accessory to a contravention, we're not talking about like being an accessory to a crime where you're complicit in the wrongdoing. What are we're seeing in discrimination claims now, which often involve bullying conduct, is that people that are involved in the management of the complaint, or more often the mismanagement of the complaint, are being added to the proceedings. So what that means is that the first respondent will be the organisation. So say it's Comcare. The second respondent, the person who the claim is being brought against, will generally be the bully or the discriminator. Then, you may get an HR manager, a lawyer, a line manager, anybody involved in the process can be included from the basis of accessorial liability. So again, if you are leader, it's something to bear in mind because financial penalties can follow if you're brought in in that way.

Key takeaways. There is a handout I think which has a summary essentially in terms of the boring legal stuff. But from my perspective in the definitions, from my perspective, the key non-legal take-outs in terms of things that we really want you to remember and focus on is that, of course, workplace bullying is a serious issue. I would say arguably it is the most serious safety issue for Australian workplaces. The second is that ensuring psychosocial wellbeing enhances team and organisational performance. There's a lot of research now that says that having high levels of psychosocial stability gets better results. So essentially, investing to ensure that bullying isn't occurring is, of course, a worthwhile investment. Now, I've been doing training with some other agencies. Sometimes, people say, well, what do we do if the minister is bullying us?

And there's certain things that are within your control and certain things that aren't. But to the extent that you can try and minimise the bullying and anything that's occurring within your field of responsibility, then it's very important to do so. The third thing that I wanted to say is that stamping out bullying behaviours within organisations is hard and it requires effort. It really does require effort because a lot of these things that I've mentioned go on below the radar really. They might be little conversations that are happening in quiet rooms, they may be by email, so there's not necessarily an awareness. It's hard to get rid of bullying within in an organisation. It usually does require cultural change usually to actually get rid of it in a serious way. And in my view, it always requires top down leadership.

If your leaders aren't getting along, aren't treating each other respectfully, aren't treating the ELs and everybody else respectfully, then essentially, it's obviously setting a very bad example for others. But most relevantly, I am not going to report that I'm being bullied to somebody higher up in the chain that I see is also a bully because I'm going to think that they're not going to have my back in that situation. So that top down leadership and people walking the walk is very important in terms of trying to lower levels of bullying within any organisation.

Understanding the legal risks is, of course, really important. There are risks there. Understanding what is and what isn't bullying, noting that you'll now understand, if you didn't already, that there is a lot of grey. There is a lot of grey about what is and what isn't bullying, but that ought not stop you from doing what you need to do from an operational perspective. And that leads into my final point, which is what I started off with, which is that, of course, awareness of mental ill health within organisations is a good thing. It does make all of this a lot harder because people are less inclined or feel reluctant to engage in conduct or performance management with someone that they know is having a hard time because of their depression, anxiety, whatever it may be.

But what I would really implore you to do is to not just do nothing because that's bad for both the employee and the organisation. And if handled respectfully, then these conversations can occur and without a whole lot of assumptions about what it is that is feeding into a performance issue that might have nothing to do with someone's mental health diagnoses.

Page last reviewed: 15 March 2020

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Date printed 17 Jun 2024