Workplace bullying is harmful not only for the victim, but the workplace as a whole. If bullying is considered to be happening “at work” it can also expose the employer to risk of legal action.
Workplace bullying is characterised by persistent and repeated negative behaviour directed at an employee, or group of employees, that creates a risk to health and safety.
To constitute ‘bullying’ in the workplace the behaviour:
Must be repeated. A one-off remark or action will not constitute bullying (though may be another offence);
Must create a risk to health and safety;
Must do more than just make someone feel upset or undervalued at work. (Whilst the employee’s perception of events and feelings is relevant, it is not determinative).
When looking at any possible bullying behaviour, it must be considered unreasonable when looked at in context.
The cost of bullying:
Practically:
Loss of productivity
Absenteeism
Staff turnover
Poor culture
Poor reputation
Workcover
Legally:
Worksafe investigation
Order to stop bullying
Unfair dismissal claim
Negligence claim
General protections claim
Workplace bullying is not restricted to acts which take place only on the work premises during business hours. Bullying can take place outside of work hours and at distinct locations. For employers, it is worth noting that there need only be a connection between the bullying behaviour and the workplace for it to be considered “at work”. Determining whether bullying takes place “at work” can be a difficult question, particularly in the age of social media. When does an employee’s out of work conduct fall become a concern for an employer?
There is no clear answer and determination involves an analysis of the entire context of the situation. However, cases have suggested that disciplinary action against an employee may be necessary when ‘viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or the conduct damages the employer’s interests; or the conduct is incompatible with the employee’s duties as an employee’: Rose v Telstra Corporation Ltd [1998] AIRC 1592 at [30].
CASE STUDY: Robinson v Lorna Jane Pty Ltd (2017) QDC 266
Claim: Negligence
Issue: Was Lorna Jane liable for bullying on Facebook?
Facts:
Plaintiff (Ms Robinson) claimed that she was bullied by her manager and that she sustained psychological injury as a result
Ms Robinson brought a claim against Lorna Jane alleging that they were vicariously liable for the actions of the manager
Posts made by manager allegedly contained comments which were derogatory of Ms Robinson
Posts did not expressly refer to Ms Robinson
Lorna Jane had workplace bullying policies, immediately directed posts to be removed and disciplined the manager who made the posts
Outcome:
Lorna Jane had no knowledge of the manager’s behaviour and its alleged impact on Ms Robinson – therefore, they were not liable
Lorna Jane had taken reasonable steps to prevent and manage workplace bullying and acted promptly upon becoming aware of the posts
Lorna Jane had comprehensive policies and procedures for managing social media and workplace bullying
TAKE AWAY MESSAGE FROM THIS CASE:
1. Take a stand on social media.
Employers have a duty of care to protect employees from foreseeable harm under common law and OHS legislation.
Implement an effective and well-communicated social media policy.
This policy should clearly outline your workplace culture, expectations and what is acceptable and unacceptable with specific reference to social media use.
This policy should also outline consequences of breaching the policy.
- Efficient and effective action.
You must have procedures to efficiently respond to allegations to minimize any further harm.
Ensure any investigation is conducted in accordance with procedural fairness.
Ensure any investigation is done with integrity.
Managing Bullying
Even if bullying is not considered to be the responsibility of the employer, it is still good practice to create a safe workplace and a positive work environment. A good workplace culture minimises the risk of problematic behaviour inside and outside the workplace. Your workplace should have updated policies and training, clear reporting systems, effective complaint processes, efficient investigation strategies. These policies and systems should be constantly monitored and reviewed.
A happier, safer workplace is a more productive workplace.
Tips to manage workplace bullying and behaviour outside the workplace:
Establish workplace standards and procedures.
Emphasize the importance of respectful behaviours in your policies.
Establish complaint process and encourage informal resolutions.
Train staff to recognise unwelcome behaviour.
Foster a culture where negative behaviour is not tolerated.
For further advice & support contact EAP Assist.