WORKPLACE BULLYING HOW TO REDUCE WORKPLACE BULLYING AND AVOID ITS NEGATIVE EFFECTS What is Workplace Bullying?

The concept of workplace bullying has various definitions. The Australian Human Rights Commission Fact Sheet on Bullying describes it as verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work. Section 789FD of Part 6-4B of Fair Work Act (Cth) provides A worker is bullied at work if: while the worker is at work in a constitutionally-covered business; an individual; or a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and that behaviour creates a risk to health and safety. While a range of behaviour can constitute bulling, it is widely recognised that bullying in the workplace can be destructive for the employee concerned and for the employer. In a report produced by the House of Representatives Standing Committee on Education and Employment entitled Workplace Bullying: We Just Want It to Stop, the Committee notes that workplace bullying can cause significant damage to an individuals health and safety as well as undercutting the productivity of an entire organisation. The report notes that the Australian Productivity Commission estimated that workplace bullying costs the Australian economy between $6 billion and $36 billion annually. How does Workplace Bullying affect individuals and the organisation they work for? Various studies done on the effects of bullying on individuals have identified that employees who are exposed to bullying in the workplace can experience any of the following post-traumatic stress disorders; depression; anxiety; sleep disturbances; lowered self-esteem; anger; chronic fatigue; suicidal thoughts; irritability; feelings of nervousness, insecurity and victimisation; burnout; musculoskeletal complaints and muscular tension; headaches; nausea; stomach upset; and social withdrawal.
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As noted above, the effects of workplace bullying are not limited to the employees and can result in the following harmful effects to an employer: Increased staff turnover, which results in increased recruitment costs and the costs associated with training new employees;

Which comes into effect on 1 January 2014.

Loss of productive work time due to sick leave, workers compensation absences as well as the time that is lost responding to and investigating allegations of workplace bullying; Adverse effects on the morale of the workplace and the resulting loss in productivity due to unhappy workers; and Negative effects on a companys reputation which may lead to the employer not being able to recruit the best candidates for positions.

Methods of minimising the risk of workplace bullying occurring in your workplace One of the best ways an employer can reduce the instances of bullying in their work place is to have a sound and comprehensive workplace bullying policy in place. In developing a workplace bullying policy an employer should clearly set out the employers commitment to the prevention of bullying and other forms of inappropriate behaviour within the workplace. The policy should define workplace bullying, and include examples of conduct that do or may constitute bullying. The policy should include a complaint resolution process that ensures privacy and confidentiality, aims to resolve complaints within a reasonable timeframe, includes a review and appeals process and provides for investigation of the complaint by an external investigator, if required. Further to policy considerations, workplace bullying can by managed by provision of ongoing training to staff and management as to the types of conduct that may constitute bullying and the flow on effects to individuals and the business. Employers should also ensure relevant policies are accessible to all employees, and that employees are familiar with the policies and understand the implication of non compliance. Policies must remain relevant to be effective. Therefore, policies must be reviewed regularly to ensure that the needs of the organisation are being met. What are the ramifications if bullying occurs place in your workplace? As noted above, workplace bullying can have multiple negative effects on a workplace, including economic loss. There is clear potential for legal ramifications if bullying occurs and is not addressed by the employer. An employer owes a duty of care to employees under common law and pursuant to legislation. Pertinently, section 19(1) of the Work Health and Safety (National Uniform Legislation) Act 2011 provides A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged, by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. Breach of this duty can result in an employer being fined or subject to other enforcement procedures under the Act.

At common law it is an implied term of an employment contract that the employer will provide a safe working environment. What can employees who feel they are being bullied at work do? Under the present legislative regime, if an employee believes that they are being subjected to bullying then they can complain to NT Worksafe that their employer is failing to provide a safe workplace as required by the Act. Further, if an employee suffers an injury due to workplace bullying then this may give rise to a claim under the Workers Compensation and Rehabilitation Act. Amendments to the Fair Work Act (Cth) From 1 January 2014, amendments to the Fair Work Act regarding bullying in the workplace come into force. Pursuant to these provisions, a worker who reasonably believes that he or she has been bullied at work may apply to the Fair Work Commission for an order to stop the bullying A worker is broadly defined and includes: A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking including work as: An employee; or A contractor or subcontractor; or An employee of a contractor or subcontractor; or An employee of a labour hire company who has been assigned to work in the persons business or undertaking; or An outworker; or An apprentice or trainee; or A student gaining work experience; or A volunteer; or A person of a prescribed class.

Employers that are covered by the amendments are a business or undertaking conducted by a person or entity who is a: Constitutional Corporation; The Commonwealth; A Commonwealth Authority; A body corporate incorporated in a Territory; and The business or undertaking is conducted principally in a Territory or Commonwealth place

If the Fair Work Commission is satisfied that the worker has been bullied and there is a risk the worker will continue to be bullied, it may make any order it considers to be appropriate to prevent the worker from being bullied at work (other than an order requiring payment of a pecuniary penalty). The Explanatory Memorandum to the amendments provides the following examples of the type of orders that the Fair Work Commission may make:

That individuals or a group of individuals stop the specified behaviour; Regular monitoring of the behaviour by the employer; Compliance with the employers workplace bullying policy; The provision of information and additional support and training to workers; and A review of the employers workplace bullying policy

If the order made by the Fair Work Commission is not complied with then the employer or individual involved may be in breach of section 789FG of the Fair Work Act. Section 789FG is a civil remedy provision, which means that a person affected by the contravention can apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory court for orders in relation to the contravention of the order. The relevant Court may then make orders granting a interim or permanent injunction, award compensation for loss and other orders Summary A happy workplace is a productive workplace. However, a workplace in which bullying occurs place is likely to neither happy nor productive. Clearly, it is in the interests of employers and employees to take steps together to prevent and eliminate bullying in the workplace. This will go a long way towards preventing injuries to employees and lost production time for employers. It may also reduce cases of absenteeism and claims for psychological injuries under Workers Compensation Legislation. Time spent by employers, in consultation with employees, developing comprehensive policies on workplace bullying will be time well spent and should result in savings in the long run. Comprehensive policies on bullying and reasonable steps by management to prevent and extinguish bullying could also prevent prolonged and expensive litigation. Please contact Mr Peter Orr at De Silva Hebron on (08) 8924 4944 if you, your company or someone you know would like any advice or assistance in relation to: preparation of policies in relation to workplace bullying; investigating allegations of workplace bullying; or any other legal assistance for employment related matters.. Peters profile is available on the De Silva Hebron @ www.desilva-hebron.com