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The thought of bullying has long been associated with naughty children in a schoolyard. But in recent years, there has been increased awareness and recognition in Australia that adults can be bullies too. Nowhere is this notion more alive than in the workplace, where high stress levels and hierarchies make a framework for day to day life.
While the terribly behaved child may be ordered to stay away from school for a day, a bully in the workplace risks paying for her or his mistakes in a courtroom. Even if there is no single statutory avenue for a claim in bullying, recent cases in New South Wales reveal that there are a number of ways to seek redress and claim hurts if an individual has been bullied in the workplace.
Bullying – what does it mean?
There is no official legal definition of bullying but there are a number of key characteristics that are commonly used to describe bullying. The Law Society of New South Wales describes bullying as behaviour that “intimidates, offends, degrades, insults or humiliates an employee, possibly in front of co-staff, clients or customers and which includes physical or psychological behaviour”.
The elemental ingredients of bullying are:
behaviour that intimidates, offends or humiliates;
behaviour that places a name’s physical or psychological welfare at risk;
usually, there is an element of repeated treatment or persistence (but this is chose on a case-by-case basis);
and there is no intention needed.
Examples of bullying include sarcasm, threats, teasing or even physical isolation. In the 1997 case of Dillon v Arnotts Biscuits Ltd, a factory hand was forced to work at an isolated workstation with her back to other employees, because the boss wanted to “toughen her up”. This was described by the Australian Industrial Relations Commission as “incessant bullying”. On the other hand, one off instances such as a name swearing when they are stressed may not be considered bullying.
Claiming for hurts
The Occupational Shape and Safety Act 2000 is perhaps the most direct basis upon which to claim hurts for bullying in a New South Wales workplace. The first stated goal in s 3 of this Act is precisely concerned with securing and promoting the “shape, safety and welfare” of people in the workplace. In s 8 of the Act, the duties of an employer are listed more specifically. Among other things, an employer is responsible for “ensuring that systems of work and the working environment of the employees are safe and without risk to shape”.
In the 2004 case of Inspector Maddaford v Coleman, the New South Wales Industrial Relations Commission confirmed an earlier choice that a timber joinery company had breached its duty under s 8 of the Occupational Shape and Safety Act 2000 by fault to ensure a healthy and safe workplace. In this case, a 16 year ancient factory hand was the subject of violent bullying – he was wrapped in plastic by his co-staff, rolled around on a trolley and covered in sawdust and glue. What is appealing here is that the boss and factory foreman were found to be personally liable under s 26 of the Act (liability of managers and directors), even though they were not frankly involved in the incident. Indeed, if the risk of bullying is foreseeable, employers can be held liable. In other words, they do not only have to react to bullying, they also need to be proactive in eliminating it so that they ensure a healthy and safe working environment.
So the claim for bullying succeeded … but what were the hurts? When the case was first heard, the company was fined $24,000 and the boss and the factory foreman were personally fined $1000 each. But, in the second hearing, it was found that the penalties imposed were too low due to the seriousness of the topic and the need for deterrrance. In other words, because bullying is evenly hidden or not talked about, the court felt that deterring bullying in the future was a significant factor in determining the penalty. Ultimately, the personal fines were bumped up to $9,000 for the boss and $12,000 for the factory foreman, who was frankly responsible for supervising employers. Obviously, the courts have realised that bullying is not a topic to be taken lightly.
Other avenues to claim for hurts
In some cases, bullying in the workplace may become so unbearable that a person is forced to resign from their job. Where this occurs, it may be possible for a person to claim for hurts under the Industrial Relations Act 1996 (NSW). This means that because a personal is effectively forced to resign from their job, an unfair dismissal claim arises and a person may be able to seek compensation. In Dillon v Arnotts Biscuits, the court found that the incessant bullying of a factory hand by her boss had led to “constructive dismissal”. She recommenced her work and was reimbursed for her lost income.
Bullying in the workplace may also make a claim for hurts if it constitues a form of discrimination. In New South Wales, it is against the law to bully or harass a name on the basis of their race, sex, pregnancy, marital status, religious beliefs, sexuality or disability. This thought is captured in the Anti-Discrimination Act 1977 (NSW), but there are also a number of Commonwealth Acts which prohibit discrimination in (and out) of the workplace.
From the boardroom to the courtroom
Bullying is terrible for the workplace because it reduces efficiency, motivation and self-confidence, as well as increasing stress, anxiety and mental shape days. But nowadays, bullying in the workplace is also a potential lawsuit. It is apparent in the law and in the courtroom that bullying can give rise to claims for hurts in New South Wales.