September 2004

Bullying, Harassment and Discrimination: An OH&S and Management Issue

What is Bullying and Harassment?

Bullying can take many forms in the workplace including undermining an employee, physical assault, verbal intimidation or making it more difficult for the employee to carry out their tasks. Bullying can expose employers to legal liability. There are a number of legal actions that can and are being brought against employers arising from workplace bullying.

Examples of potential legal actions are:

  • claims for breach of the implied term of good faith in the contract of employment
  • unfair dismissal claims,
  • unfair contract claims
  • criminal charges where the conduct involves assault,
  • criminal charges for offences under Occupational Health and Safetylegislation,and
  • discrimination claims under the Anti-Discrimination Act (NSW).

Bullying, Harassment and OH&S

Several recent prosecutions clearly illustrate that workplace bullying can lead to prosecutions against employers, directors and employees under OH&S legislation.

Employers are required to provide a safe working environment. This obligation encompasses the need to have effective systems in place to eliminate, and deal with, workplace bullying and violence.

"It is essential that employers have in place an effective policy which addresses workplace bullying, harassment or violence".

An illustration of the potential OH&S liability which can arise from workplace bullying is the decision of the NSW Chief Industrial Magistrate in May 2004 - Inspector Maddaford –v- Coleman Joinery (NSW) Pty Ltd & Or.

This prosecution arose from the "initiation" of a sixteen year old apprentice by fellow workers. The victim was wrapped in cling wrap, was threatened with physical injury, and had sawdust and glue forced into his mouth. The "initiation" took place over about half an hour.

The employer was charged with breach of section 8 of the OH&S Act 2000 NSW in failing to ensure the health, safety and welfare of the apprentice. Management did nothing to prevent the initiation. No disciplinary action was taken against the perpetrators of the conduct. The employer did not have a workplace violence policy. In this case the employer was fined $24,000.00. Two directors of the employer were also prosecuted. They were both convicted and fined $1,000.00 each.

A recent Victorian decision also illustrates the potential OH&S liability which can arise from workplace bullying. In this case an employee was prosecuted under the Victorian OH&S Act. The defendant was accused of having verbally abused fellow employees on a number of occasions over a period of about a year. He was also alleged to have physically assaulted a fellow worker. The defendant’s behaviour resulted in lost time for fellow employees, and created a bad work environment.

In this case the defendant employee was fined $10,000. The defendant’s employer is also subject to prosecution for failing to ensure the safety of employees at work.

Sexual Harassment and Sex Discrimination

Sexual harassment is a form of sex discrimination and constitutes a breach of the Anti-Discrimination Act (NSW). A working environment where unwelcome sexual banter or unwelcome physical contact occurs, or where sexist language or sexually inappropriate remarks, jokes and emails are part of the culture, can constitute sexual harassment and sex discrimination on the part of the employer as well as the offending individuals. The test is whether a reasonable person would know that the conduct would offend an employee.

The onus is on the employer to implement and enforce a policy regarding such conduct. However, the mere existence of such a policy is not enough. Employers are vicariously liable for the actions of their employees. Therefore, if reasonable steps are not taken to prevent or stop such conduct occurring, an employer may be held liable for any civil claims brought by an aggrieved employee.

Other Consequences for Employers who Foster or Acquiesce in Bullying, Harassment or Discrimination

As illustrated above, workplace harassment or bullying may expose employers, and individuals, to prosecution or civil claims arising from such conduct.

Workers compensation liability can also arise in these circumstances. In the event an employee is harassed or bullied and subsequently takes time off work, or seeks medical attention due to anxiety or depression, a workers compensation claim for psychological injury often results. Compensation claims of this nature will lead to increased workers compensation premiums and a drain on administration resources.

In addition to potential legal liability resulting from workplace harassment, conduct of this kind can have other negative outcomes which are less visible but can be just as costly to a business. Bullying and harassment can result in low morale, reduced productivity of employees, high absenteeism and high turnover of staff.

Apart from these considerations there is also the cost of having to investigate and respond to complaints by employees and the need to sometimes remove or suspend an accused employee from the workplace or their work group while the complaint is being investigated.

What should employers do?

It is essential that employers have in place an effective policy which addresses workplace bullying, harassment or violence.

Some care needs to be taken to draft a sensible policy which encompasses the different sensitivities staff will have. The policy should enforce the need to create a working environment which is free from the activities under discussion, and a safe working environment.

The policy should make it clear that breaches will be dealt with by the employer, and serious breaches will result in termination of employment.

The policy needs to be communicated to all staff and understood.

If a complaint is made about harassment, bullying or discrimination, the employer should promptly investigate the complaint. The employer should document the allegations and the response from the alleged harasser or bully. Accounts from independent witnesses or co-workers who saw or heard the alleged behaviour should also be documented.

If the complaint is substantiated by the evidence, then as a minimum, discipline or counselling of the offender should occur. In serious or recurring cases advice should be obtained about dismissal of the offender.

Employers can’t afford to permit a working environment to exist which countenances workplace bullying, harassment, or violence. To protect themselves against the potential legal liability which can arise from conduct of this kind, employers need to have an effective policy in place addressing this kind of conduct. They also need to deal immediately and properly with any incidents of conduct of this kind which occur in the workplace.

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