GeneralWork Health and Safety

Bullying in the Workplace – No matter where you work

Workplace bullying is a dynamic and complex phenomenon, its causes are often multifaceted and its impact individual and varied. It can have a profound effect on all aspects of a person’s health as well as their work and family life, undermining self-esteem, productivity and morale. For some it can result in a permanent departure from the labour market and in extreme cases, suicide.

The impact on the employer and work colleagues can be just as damaging, as bullying affects morale and generally negatively impacts all the employees who are exposed to the conduct. In turn it affects productivity retention rates and causes a serious financial cost to the business.

Bullying in the Workplace

Prior to 2013, Workplace bullying has previously been addressed through work health and safety laws. Since 2011, the Commonwealth and most states have adopted the national model for work health

In 2013, amendments to the Fair Work Act 2009 (Cth) (“FW Act”) conferred power upon the Fair Work Commission (“FWC”) to make (retrospective) orders to stop bullying from 1 January 2014. Where an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety, application can be made to the FWC to make a ‘Stop Bullying Order’.

The House Standing Committee on Education and Employment (“Standing Committee”), in its 2012 report, noted that repeated unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This includes behaviour that is victimising, humiliating, intimidating, or threatening.

The Standing Committee further noted that a risk to health and safety means the possibility of danger to health and safety and is not confined to actual danger to health and safety. The bullying behaviour must create the risk to health and safety; therefore, there must be a causal link between the behaviour and the risk.

Common examples of behaviour that could be considered as bullying are:

· Abusive, insulting or offensive language or comments;

· Victimisation;

· Spreading misinformation or malicious rumours;

· Undue criticism;

· Excluding, isolating or marginalising a person from normal work activities;

· Unreasonable work expectations;

· Withholding information that is vital for effective work performance, or denying access to resources such that it has a detriment to the worker; and

· Practical jokes or rites of ‘initiation’.

Reasonable management action conducted in a reasonable manner does not constitute workplace bullying.

Despite the existence of the federal jurisdiction to deal with claims of bullying whilst the employee remains employed, the primary obligation for an employer to ensure a safe place of work still applies. The work health and safety obligations of all employers is paramount, and an employer’s failure to

ensure a safe place of work may result in significant liability for that employer. Despite the real legal risk and resulting costs, the hidden costs of bullying behaviour to both the employee and the employer can be extreme.

Bullying when Working from Home

Along with these traditional examples that often occur within the workplaces, the COVID-19 pandemic has taken many of us out of the traditional workplace environment to instead work remotely from home. Yet, this environmental shift has, in many cases, led to an increase in instances of workplace bullying.

When working from home, workers can experience an increase in anxiety, emails can be misinterpreted, and increased self-isolation may create a climate where effective communication is undermined as teams that once worked together in close proximity of each other, now suffer the tyranny of distance.

The main bullying problems when working from home include:

· Misinterpreted emails;

· Isolation and loneliness causing workers to act and react irrationally;

· Miscommunication;

· Lack of human connection;

· Emotion and anxiety being deflected onto others;

· No firm boundaries when it comes to calls and/or other communications outside of business hours.

Furthermore, where instances of bullying are directed at a worker who is working from home, a place that they would normally associate with safety and ‘quiet enjoyment’, the effect can be heightened as the bullied worker has no ‘safe haven’ to retreat to at the end of the day.

It is likely that employers will be met with an increased number of bullying complaints surrounding email communication where workers are working from home. Emails do not always express the full intention or sentiment of the sender and can be easily misinterpreted – particularly where the recipient is already feeling vulnerable due to anxiety, isolation and a paucity of peer support.

The sudden increase in people working from home is new to many businesses and workers may not have adapted to the new communication norms. It is also much easier for a bully to ignore or isolate a worker if the employee is not in the same physical location. The failure to properly communicate and include team members in relevant discussions is facilitated by the physical separation occasioned by remote work.

Workplace bullies, like all bullies, tend to be opportunistic and may refrain from attacking their target in front of a group of workers where they themselves might feel peer pressure for their bullying behaviour. Workers who may have previously enjoyed the peer support of their colleagues in the workplace environment are now more at risk of being targeted when working remotely.

Effects of Workplace Bullying

Workplace bullying often results in significant negative consequences for an individual’s health and wellbeing, for example, depression, anxiety, sleep disturbances, nausea and musculoskeletal complaints and muscle tension. In turn, these negative consequences to individuals inevitably lead to negative consequences to business. Loss of productivity through poor morale, increased absenteeism, workers compensation claims, the need to alter reporting lines and/or separating workers from particular groups and time spent documenting and pursing claims combine to place a considerable financial burden on business.

Furthermore, in Victoria, an amendment to the Victorian Crimes Act makes serious bullying on offence punishable by a maximum penalty of 10 years’ imprisonment. These amendments were introduced following the suicide of a young woman, Brodie Panlock, who was subjected to relentless bullying in her workplace. ‘Brodie’s Law’ as it is known has not been enacted in other jurisdictions but has been examined by the various attorneys general.

What can Management Do to Prevent Bullying in the Workplace and when Working from Home?

Professionalism, respect and civility should be enshrined in workers’ contracts and part of their job description. Furthermore, businesses need to have up-to-date and robust codes of conduct policies in place that deal with specific examples of workplace bullying. Training and professional development are key tools in reminding workers of their individual and group obligations to their colleagues, managers and reports.

Whether in the office or working from home, training modules completed through face-to-face workshops can now just as easily be accomplished online, either as a group (through video conferencing) or one-on-one.

Morning and afternoon catch-up meetings (particularly by way of video conference) when working from home, is a good face-to-face way for managers and their reports to get an understanding of where each other are up to with respect to their work. However, in addition to these more formal interactions, virtual breaks are also a good way for employees to touch base with their colleagues, in an informal social setting for 10-15 minutes of ‘water cooler’ talk, and for managers to ensure that their reports are coping and not suffering from bullying or other inappropriate conduct.

Other ways to keep the work climate fun and positive through the use of appropriate digital technology might include daily or weekly activities. Trivia quizzes and other games are a good way of breaking up the day and preventing workers from feelings of isolation when working from home.

Bullying however is conduct not confined to online behaviour and an employer needs to ensure it is vigilant in stamping out any behaviours whether in the office or not that amount to bullying of co-workers. Unfortunately, bullying is one of the most prevalent work health and safety issues in Australia today and affects almost all workplaces. The cost of dealing with this type of conduct may be far outweighed by the cost of ignoring it.

We are Here to Help

We regularly advice clients regarding the implementation of robust workplace policies and training including in the areas of appropriate workplace conduct. If you require further information in relation to any aspect of this client alert or assistance in dealing with an employment law related issue, please feel free to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.

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