Could you identify a bully in your workplace? What is Bullying?
‘Workplace bullying means any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.’
Repeated refers to the persistent or ongoing nature of the behaviour and can refer to a range of different types of behaviour over time.
Systematic refers to having, showing or involving a method or plan. Whether behaviour is systematic or not will depend on an analysis of the circumstances of each individual case with the general guideline in mind.
Risk to health and safety includes the risk to the emotional, mental or physical health of the person(s) in the workplace.
“Bullying” can be serious misconduct, and may, subject to the particular circumstances, be a valid reason for termination. Bullying behaviour can be obvious and aggressive.
Examples could include:
- Abusive, insulting or offensive language;
- Behaviour or language that frightens, humiliates, belittles or degrades;Teasing or regularly making someone the brunt of practical jokes;
- Displaying material that is degrading or offending;
- Spreading gossip, rumours and innuendo of a malicious nature.
NB: Violence, assault and stalking are extreme forms of bullying that constitute a criminal offence. Such behaviour should be reported directly to the police.
Workplace bullying can also be subtle and could include behaviour such as:
- Deliberately excluding, isolating or marginalising a person from normal workplace activities;
- Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment;
- Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism. Covert behaviour that undermines, treats less favourably or disempowers others, is also bullying, for example:
- Overloading a person with work;
- Setting timelines that are very difficult to achieve, or constantly changing deadlines;
- Setting tasks that are unreasonably beyond a person’s ability;
- Ignoring or isolating a person;
- Deliberately denying access to information, consultation or resources;
- Unfair treatment in relation to accessing workplace entitlements, such as leave or training.
What Isn’t Bullying
- Reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an employee;
- A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with an employee’s employment;
- Reasonable administrative action taken in a reasonable manner by an employer in connection with an employee’s employment; or
- Reasonable action taken in a reasonable manner under an Act affecting an employee.
Bullying as Serious Misconduct Justifying Dismissal
In 2008, the Australian Industrial Relations Commission (AIRC) considered whether bullying constituted serious misconduct to justify dismissal in the matter of Karen Sinapi v Coles Supermarkets Australia Pt y Ltd  AIRC 405.
The story …..
Ms Sinapi was a Store Manager at Coles’ Campbellfield and had been employed by Coles in various roles over 24 years. Following an internal investigation, Coles terminated Ms Sinapi’s employment for serious misconduct. Ms Sinapi sought compensation in the AIRC, alleging the termination of her employment was harsh, unjust or unreasonable. Coles argued that Ms Sinapi’s behaviour on several occasions justified dismissal including that she had:
o Used offensive language to a sales representative;
o Adopted a demeaning and belittling attitude towards another employee (Ms Thompson) including, grabbing her ponytail and pulling her towards a store display; and
o Engaged in “flirtatious and inappropriate behaviour” with a subordinate employee on
a number of occasions which was observed by other employees and captured on security video footage.
Ms Sinapi admitted using offensive language but said that she had spoken in an “amiable and jocular manner”. She admitted pulling her colleague’s hair, but claimed that it was “gentle” in nature and that there was “a prevailing mood of jocularity”. Ms Sinapi claimed her behaviour towards the subordinate employee had been consolatory in nature.
The result ……
In rejecting Ms Sinapi’s application, the AIRC commented that any one of the incidents would be sufficient to justify termination of employment, and together, constituted a valid reason for termination. Given Ms Sinapi’s position as Store Manager, the AIRC held that it was reasonable to expect that she would be an exemplar of the behaviour expected of employees. Further, Coles was under an obligation to act where behaviour of an employee breached normal standards of professional courtesy and etiquette and had the potential to damage its reputation, both in the market place and in the community.
Why bullying goes unreported
There are many reasons why workers may not report bullying or cooperate in inquiries. These include:
lack of response by employer;
- lack of knowledge about bullying behaviours and their effects;
- uncertainty about the correct procedure or where to seek help;
- fear of retribution from the bully or bullies;
- feelings of intimidation or embarrassment;
- belief that the behaviour is part of the workplace culture;
- feeling that nothing will change; or
- feeling that their opportunities for promotion in the organisation or the industry will be affected.
- Some workers may not be aware that the organisation they work for has established bullying prevention and management procedures and that their reports will be dealt with in a proper manner.
How to prevent bullying
Although primarily a psychological issue, workplace bullying should be managed like any other occupational health and safety hazard. That is, once identified the degree of risk should be assessed and the risk controlled and reviewed to ensure that workplace bullying does not become, or continue to be, a problem within the workplace.
Consider the following:
1) Consult with workers and safety and health representatives
Employers should establish whether bullying exists in their workplaces or whether there is the potential for bullying to occur. Employers may seek the cooperation of workers to identify bullying behaviour. Bullying is more likely to be reported and cooperation achieved if managers, supervisors and other workers have been involved in the process from the beginning.
2) Develop a prevention policy
A bullying prevention policy, developed by employers in consultation with workers and safety and health representatives, should aim to eliminate existing workplace bullying, if any, and prevent it in the future.
The policy should include a bullying prevention policy, directed at promoting principles of decency and mutual respect and combating discrimination in the workplace. The policy can be developed on its own, or may be included in an occupational safety and health policy or code of conduct.
Workers should be aware of policies and the need to follow them in performing their jobs. Preventative measures may involve an organisation-wide response as well as addressing symptoms in a specific area.
3) Provide information and training
Employers should make information on workplace bullying available to all workers, supervisors and managers. If necessary, the information should be provided in languages other than English.
Information on the bullying prevention and management policy should be widely promoted in the organisation through information sessions, staff meetings, newsletters, etc. The policy should be included in the induction package for all new workers.
Workers should also be provided with information on points of contact within the organisation, such as contact officers or grievance officers.
4) Monitor the effectiveness of action taken
The bullying prevention plan should be regularly evaluated to ensure that it remains appropriate and it prevents bullying at the workplace.
Responding to Incidents
Informal resolution process
An informal resolution process aims to ensure that the bullying incident is resolved as quickly as possible. Although an employee has the right to make either a formal or an informal complaint, they should be encouraged to commence with the informal process first, as this can usually achieve a more timely and satisfactory resolution for both parties.
If the informal resolution process fails to provide an agreed outcome then the employee should be told that they could pursue a formal complaint leading to investigation.
Formal investigation process
It is important that employees clearly understand what to expect from making a formal complaint. You may wish to inform employees that:
- The investigation procedures will adhere to natural justice principles and ensure fairness for all concerned;
- An investigation will occur as soon as possible after the complaint is received;
- An impartial person who can carry out the investigation without hindrance will conduct the investigation.
What are your obligations?
Occupational Health, Safety and Welfare
Due to the effect on the safety and health of employees and others at the workplace, bullying is unlawful under the Occupational Safety and Health Act 1984 (WA).
Equal Opportunity Act 1984 (WA) Bullying behaviour can involve elements of discrimination. The types of discrimination covered by West Australian law include disability, race, sex, age, sexuality, pregnancy and marital status. Employees being bullied on any of these grounds can make complaints to the Equal Opportunity Commission, who will attempt to resolve the complaint privately by conciliation. If settlement cannot be reached, cases can be referred to the Equal Opportunity Tribunal for a public hearing and decision.
Although the Workers Compensation and Injury Management Act 1981 (WA) does not mention bullying specifically, psychiatric disabilities caused by bullying at work, are compensable, if and only if, the employment was a substantial cause of the disability. An employee may make a claim for compensation regarding any compensable injury that arises out of, or in the course of their employment.
There is no specific provision in the Industrial Relations Act 1979 (WA) that deals with workplace bullying, however, where an employee is dismissed or forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of that Act.
Where it can be demonstrated that an industrial dispute exists between an employer and employee and all of the necessary requirements of the Act have been met, a notice of industrial dispute can be lodged with the Industrial Relations Commission of Western Australia to seek its assistance to resolve the dispute.
Workplace bullying may also amount to criminal behaviour in breach of the Criminal Code Act 1913 (WA) various criminal legislation. Examples include assault and unlawful threats.
Department of Commerce WA – Code of Practice Violence Aggression and Bullying at Work 2006.
Preventing Bullying in the Workplace – A Practical Guide for Employers, Equal Opportunity Commission of South Australia.
Heidi Fairhall, Lawyer, Blake Dawson, Sydney (case law)