Know your Rights
Bullying is any type of behaviour, or series of behaviours, that unfairly or unreasonably puts down, belittles, undermines, controls, abuses, scares, intimidates, excludes, offends or embarrasses someone. It is often quietly withstood by the victim because they aren’t certain that the experience constitutes bullying, or they don’t know their legal rights. Some important facts to remember about workplace bullying are the following:
• It is not defined by repetition. Even a single instance can constitute bullying.
• It only needs to offend one individual, whether they are present or overhear a comment, to qualify as bullying.
• It doesn’t have to be deliberate nor does it have to occur at the workplace – it can occur at work-organised events, during conferences, or on the journey to and from work.
• Bullying does not have to happen between employees – it can happen with clients, suppliers or any others with whom employees interact with during their work.
The key legal test for workplace bullying is how the behaviour affects the victim or those hearing it, within reason. For example: if it made the workplace unhealthy or unsafe, or if the victim suffered any form of injury (including physical, psychiatric, decreased reputation, loss of wages or employment etc.) it is considered bullying. There are a variety of laws across Australia that provide remedies for various forms of bullying behaviours including:
Anti–discrimination and Equal Employment Opportunity Law – Employers are legally liable for any such harassment unless they have taken all reasonable steps to prevent and deal with any harassment. The bully and direct manager may also be liable.
OH&S and Workers Compensation Law – Employers who do not assess and remove, or at least reduce the risks of bullying or who do not deal effectively with a bully could be prosecuted by the relevant OH&S agency and be subject to substantial fines. An individual bully and direct manager may also be fined.
Criminal Law – The following types of bullying are crimes prosecutable by police: stalking, blackmailing, harassing phone calls, theft, actual or threatened physical or sexual assault.
Defamation Law – It can be difficult and expensive to raise these claims. It is not defamation to try and resolve bullying complaints in line with confidential and fair complaints procedure.
Common Law – Employers can be legally liable for their negligence or for their breach of a contractual term in allowing bullying to happen and can have compensation awarded against them for physical, mental or other injury suffered by the victim.
Industrial Relations Law – Victims who have been dismissed when it was the bully who should have been disciplined or dismissed can lodge an unfair dismissal claim with Fair Work Australia.
If you have been a victim of workplace bullying, or would like more information or advice on handling bullying in your workplace, please call us on 1300 QUINNS (784 667), or submit an online enquiry.