EMPLOYMENT LAW MATTERS – WHEN IS WORKPLACE BULLYING UNLAWFUL?*JOHN WILSON, WILLIAMS LOVE & NICOL CLJLAW

EMPLOYMENT LAW MATTERS – WHEN IS WORKPLACE BULLYING UNLAWFUL?*

by

JOHN WILSON, WILLIAMS LOVE & NICOL**

[2010] 1 LNS(A) xxxv

AUSTRALIA


Public awareness of bullying at work is on the increase, but what is ‘workplace bullying’ and when does such conduct cross the line from being unpleasant to being unlawful?

The term ‘bullying’ is not referred to in any State, Territory or Commonwealth legislation. The Macquaric Dictionary defines a ‘bully’ to be ‘a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people’ and ‘bullying’ as ‘acting the bully towards another person’. Dictionary definitions, however, do not entirely meet with the common view of a ‘workplace bully’, other than in the sense that both suggest that bullying is more likely to occur when one person is in a position of power over another.

Bullying has come to be described in human resource and employment-related publications as referring to repeated unreasonable behaviour by a person towards another person that belittles the other person. Such conduct may, and does, manifest itself in a myriad of permutations and combinations in the workplace. So described, it is akin to harassment.

Harassment is any form of unwelcome behaviour towards another person that reasonably offends, humiliates or intimidates that person. That description has been arrived at essentially by having regard to how legislation and the courts have dealt with the notion of sexual harassment. Bullying behaviour is most clearly unlawful when it infringes anti-discrimination law, namely the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, Racial Discrimination Act 1975 and the Age Discrimination Act 2004 at Commonwealth level and their various manifestations at State and Territory level, such as the ACT Discrimination Act 1991. Broadly speaking, a person who metes out unfavourable or less favourable treatment to a worker[1] based on attributes of gender, race, disability and age is engaging in unlawful discriminatory harassment, and redress may be found under the above Acts.

While anti-discrimination legislation is the obvious starting point for assessing the lawfulness (or otherwise) of bullying behaviour, it is not the end point. Where the harassment or bullying is not connected with discrimination, practitioners should be aware of other sources of legal obligation and risk that may be applicable, with varying effects.

OH&S Legislation

Serious bullying that amounts to a failure by an employer to safeguard the health and safety of a worker in the workplace may be a breach of occupational health and safety legislation. While there is no remedy for the complainant under this regime, there are obvious implications for the employer.

Workplace policies

Human resource policy documents of employers often profess to provide for a ‘bullying and harassment free workplace’ (howsoever described). This can be of major consequence to such employers where bullying or harassment does occur and the policy document is found to have been drafted in contractual (or, to put it in the words of a Federal Court judge from a recent case, ‘in the language of contract’), rather than (merely) aspirational terms[2]. The bullied or harassed employee will, in such cases, have their remedy in contract.

[1] Note that the comparator ‘less favourable treatment’ applies at Federal level, while Territory legislation uses the term ‘unfavourable treatment’. This is not merely a semantic difference.

[2]Goldman Sachs JB Were Services Pty Ltd v. Nikolich [2007] FCAFC 120 (where significant damages for breach of such policies were awarded against an employer).

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