Workplace Bullying and Harassment
Prevent Workplace Bullying and Harassment Litigation, Understand your Rights.
Information on Workplace Bullying
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What is Workplace Bullying and Harassment?
There is no single or comprehensive definition of what constitutes bullying and harassment. There are two relevant aspects:
- Conduct that causes a person to be or feel bullied, harassed, threatened, intimidated, embarrassed, or humiliated.
- The person who is the subject of the above-mentioned conduct.
Workplace bullying occurs when a person or group of people repeatedly behave unreasonably towards another worker or group of workers and this behaviour creates a risk to health and safety.
Some examples of bullying include:
- Abusing or threatening an employee, usually when others are present;
- Withholding information;
- Making an employee feel useless;
- Spreading rumours or gossiping about a person with an intent to cause the person harm;
- Teasing or playing practical jokes;
- Leaving offensive messages on email or the telephone;
- Humiliating a person through gestures, sarcasm, criticism and insults, often in front of other workers, management, or customers;
- Behaving aggressively towards others;
- Purposely excluding an employee from workplace activities;
- Undermining an employee’s work;
- Giving employees impossible deadlines to meet (unreasonable work demands);
- Pressuring someone to behave inappropriately.
Workplace bullying does not include the following:
- Single incidents of workplace bullying type behavior;
- Management action undertaken in a reasonable manner (“reasonable management action”);
- Acts of unlawful discrimination, vilification, or sexual harassment.
Bullying and harassment can be harmful to the person being bullied and also to others who see it happening. The impacts of bullying could include the following:
- Anxiety;
- Distress;
- Panic attacks;
- Disturbed sleep;
- Physical illness, for example muscle tension, fatigue, headaches, and digestive problems;
- Loss of self-confidence and self-esteem;
- Feeling isolated;
- Deteriorating relationships with colleagues, family, and friends;
- Depression;
- Suicidal thoughts;
- Negative impact upon work performance, concentration, and decision-making ability.
Workplace bullying and harassment can also have a negative impact on the work environment, and result in direct and indirect costs for a business, such as follows:
- High staff turnover and recruitment and training costs;
- Low morale and motivation;
- Lost productivity;
- Increased absenteeism;
- Disruption to work when complex complaints are being investigated;
- Counselling, medication, and support costs;
- Costly workers’ compensation claims or legal action;
- Damage to the reputation of the business.
How Can Employers Minimize the Risk of Workplace Bullying?
An employer (including a self-employer) is legally responsible for the health and safety of everyone who visits their workplace. This includes workers, clients, visitors, and volunteers.
There are several ways in which an employer can minimize the risk of bullying and harassment occurring in their workplace. These include the following:
- Develop and communicate a workplace bullying prevention policy;
- Implement a system to manage informal and formal complaints;
- Review the effectiveness of human resource systems;
- Ensure senior management model appropriate behaviors;
- Provide training and education on appropriate workplace behavior to all workers;
- Intervene early in workplace conflict to avoid it escalating;
- Promote open communication channels at the workplace to increase the informal resolution of conflict.
There are psychosocial factors which may increase an employer’s risk of workplace bullying occurring. They include the following:
- Low levels of control;
- High work demands;
- Poorly defined work roles;
- Low levels of support;
- Unmanaged workplace conflict;
- Poorly managed organizational change;
- Low levels of organizational justice;
- Low levels of recognition and reward.
Our legal team at Queensland Workplace Law are highly experienced in workplace bullying and harassment matters and can provide advice specific to your workplace.
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What is a Psychiatric Injury?
A psychiatric injury is a condition that causes abnormal thoughts, feelings, and behaviors. They include (but are not limited to) the following:
- Depression;
- Anxiety;
- Post-traumatic stress disorder.
In Queensland, a worker seeking workers’ compensation benefits related to a psychiatric injury must demonstrate a recognized psychiatric or psychological disorder. Psychological symptoms or stress without a formal diagnosis are insufficient for such a claim. The worker needs to establish their experience of a legitimately recognized psychiatric condition, through medical evidence.
Psychiatric injuries in the workplace can be caused in many ways, and certain events lead to a workers’ compensation claim being made. These causes may include the following:
- Excessive workload;
- Bullying and harassment;
- A lack of appropriate training;
- Toxic managers;
- A lack of procedural fairness or natural justice;
- Breach of workplace policies, workplace health and safety legislation, or industry standards;
- A traumatic workplace event.
Whether you are an employee or an employer involved with a psychiatric injury at work, our legal team at Queensland Workplace Law can assist you by providing expert advice.
What is Reasonable Management Action?
Reasonable management action conducted by an employer in a reasonable way will not constitute workplace bullying. A determination of whether management action was reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including the circumstances that led to and created the need for the management action to be taken, the circumstances why the management action was being taken, and the consequences which resulted from the management action. The test is whether the management action taken was reasonable, not whether it could have been undertaken in a way which was ‘more reasonable’ or ‘more acceptable.’ An employee must be able to establish that the decision to take management action lacked any evidence and intelligible justification such that it would be determined by a reasonable person to be unreasonable in all the circumstances.
Examples of reasonable management action include the following:
- Settling realistic and achievable performance goals, standards and deadlines;
- Fair and appropriate rostering and allocation of work hours;
- Transferring a worker to another area or role for operational reasons;
- Deciding not to select a worker for promotion where a fair and transparent process is followed;
- Investigating alleged misconduct;
- Refusing an employee permission to return to work due to a medical condition;
- Counselling or disciplining a worker for misconduct;
- Modifying a worker’s duties including by transferring or re-deploying the worker;
- Advising a worker about unreasonable behavior in an objective and confidential way;
- Implementing organizational changes or restructuring;
- Taking disciplinary action, including terminating or suspending employment where appropriate and justified in the circumstances.
Our legal team at Queensland Workplace Law can provide expert advice with relation to reasonable management action taken in the workplace.
What is a Common Law Claim for Damages?
A worker in Queensland who has suffered a psychiatric injury from bullying and harassment at work may have a right to sue their employer if they feel they contributed to the injury through negligence. This process is known as a common law claim for damages.
The injured worker is alleging through this claim that the employer did not provide a safe work environment and they breached their duty of care to the worker.
The onus of proof is on the worker to prove this breach caused injury, pain, and suffering and usually a loss of income. A loss of income includes any past and future earning capacity, namely what an injured worker would have earned in the past if they hadn’t been injured, and what they may have earned in the future.
A worker or their lawyer will lodge a Notice of Claim for Damages form to commence the common law claim. This form describes the allegations of negligence they are making against their employer and is lodged with both WorkCover Queensland and the employer. It generally needs to be done within three (3) years of the date a worker was injured.
After the common law claim is lodged, the claim will enter pre-proceeding phase and during this time WorkCover or the self-insurer will investigate the claim and then either admit or deny whether the employer is liable for the injury. The injured worker may be required to attend upon medical appointments, and the quantum (value) of the claim is investigated by way of medical reports, employment records and other relevant information.
If an injured worker, or an employer have relevant information relating to the common law claim, it must be shared through a process called “disclosure”.
If employer fault is identified, informal negotiations may start, and lawyers can discuss whether a claim can be resolved informally without going to court. If an agreement is not reached during informal negotiations, the next step is called a Compulsory Conference. This is a meeting between an injured worker and others involved in the matter, including an employer or other third parties. During this meeting, everyone will discuss the incident which caused the worker’s injury and who should be at fault or found liable. The amount of damages will also be discussed which will include the following:
- Pain and suffering damages: the amount of damages given for pain and suffering is formally defined in the legislation depending on the type and severity of the injury;
- Past and future wages or economic loss: the amount of damages if a worker has lost income because of the injury, or this might happen in the future;
- Past and future medical costs: if an injured worker is assessed as requiring ongoing medical treatment, past and future medical costs will be included in the damages claim. These costs can include future surgery, medically recommended therapies, pharmaceutical items (such as pain medication), traveling expenses, and in some cases only, past or future paid care.
The payment of common law damages is made once a settlement is reached between the parties. If a settlement agreement is not reached during informal negotiations or at a Compulsory Conference in the pre-court proceedings, a common law claim for damages will move to the next stage, a trial in a court of law.
Before going to a trial, documents need to be filed with the Court. Which Court will depend upon the monetary amount being claimed by the injured worker. Negotiations can continue between the parties during this stage and the matter can still be resolved before a trial. Most claims for common law damages are resolved outside the court system, following negotiations.
Whether you are an injured worker suffering a psychiatric injury through bullying and harassment, or an employer dealing with bullying and harassment in the workplace, our legal team at Queensland Workplace Law are highly experienced in dealing with common law claims and are available to assist.
What is a Fair Work Commission Order to Stop Bullying?
An employee who reasonably believes that they have been bullied at work can apply to the Fair Work Commission for an order to stop the bullying. This is usually used in circumstances where the workplace processes have not stopped the bullying. A form F72 is used to apply, and only used if:
- An employee is a worker in a constitutionally-covered business;
- The employee has been bullied by someone more than once at work;
- The employee believes that someone will continue to bully them at work; and
- This bullying behavior creates a risk to the employee’s health and safety.
The information which will need to be provided to the Fair Work Commission by the applicant making a Fair Work Commission order include the following:
- The contact details of the applicant;
- The legal representative details for the applicant (if applicable);
- Details of the employer or principal (a principal is a legal entity that engages a contractor to do work for them under a contract for services – a principal and contractor do not have an employment relationship), including a contact person and their direct contact details;
- Details of the person the applicant believes is bullying them;
- Details of the behavior which the applicant believes is bullying;
- At least 2 examples of when the bullying behavior has happened;
- How the behavior creates a risk to the applicant’s health and safety;
- What steps have already been taken by the applicant with regards to the behavior (if anything);
- If the bullying behavior has been reported to any other organization;
- If the applicant’s manager has started performance management or disciplinary action;
- Details of what the applicant thinks needs to happen (Conciliation, Conference, and Hearings are the three ways which the Fair Work Commission will help resolve issues).
The Fair Work Commission will send a copy of a worker’s application and any documents provided by the employee to the employer or principal, and any people named as engaging in the bullying. This is given to them so they can respond.
The Fair Work Commission can help resolve issues in three ways: Conciliation, Conferences, and Hearings.
A Conciliation is an informal, voluntary, and private discussion to help parties resolve issues together.
A Conference is a discussion with a Fair Work Commission Member to work out the best way to approach an issue. In a Conciliation or Conference, the parties may agree on any outcome they feel is right in the circumstances.
Hearings are a formal legal process conducted by a Fair Commission Member. The Member reviews evidence and where appropriate, makes a decision. This can include making an order to stop bullying, when there is a risk that the bullying will continue. This might include orders that require:
- The people involved to stop the bullying;
- Compliance with, or review of, the employer’s bullying policy;
- An employer to give workers information, support, and training.
The Fair Work Commission cannot order any party to pay financial compensation, order any disciplinary action, or punish parties or terminate someone’s employment.
The Fair Work Commission will aim to address the issues quickly so that workers can feel safe and continue good working relationships. In the majority of cases, parties to a bullying matter will resolve their issues without going to a Hearing.
Our legal team at Queensland Workplace Law are highly experienced with applications to the Fair Work Commission to stop bullying and are available to assist you.
