On February 9, 2010 a Victorian Magistrate handed down fines totaling $330,000 for workplace bullying. The employer was fined $250,000. The employees who subjected their co-worker to bullying were fined between $4,000-$10,000. This is the first major decision in Australia in setting a benchmark for prosecutions in the future.
What is bullying?
A person bullies when they do or omit to do something that is repeated, systematic and directed towards an employee or group of employees, that a reasonable person would expect to victimise, humiliate, undermine, threaten or intimidate that person or persons, and which creates a risk to their health and safety.
Bullying is a form of harassment and should not be tolerated.
What are examples of bullying?
- Being isolated or excluded.
- Playing mind games or ganging up.
- Being made fun of - particularly directed at the way the employee looks, their family, sex, race, culture or the like.
- Being given meaningless jobs or unattainable deadlines or performance goals.
- Withholding information or gossiping about the employee.
- Physical harassment such as pushing, punching or wrestling.
- Any form of direct physical contact that is unwelcomed.
- Sexual propositioning, talk or contact that is unwelcomed.
The recent victimisation case contained terrible allegations involving the bullying of a 19 year old female employee over a period of 15 months that ended with her suicide. One of the allegations involved taunting the employee over a botched suicide attempt and pouring fish sauce over her hair and body. However, many of the allegations were similar to the above list.
The decision should warn all employers in respect of workers and contractors that:
1. You must have a behaviour policy and procedure in place that prohibits bullying, explaining what it is and explaining the risks of being a bully (termination/prosecution);
2. Train and induct all workers and contractors into the policy and procedure;
3. Train managers to detect bullying behavior, to never condone it and to recognise the workplace symptoms that suggest bullying is occurring.
4. As part of the bullying policy and procedure include;
a. An informal path of resolution that is confidential and assists the employee resolve the issue without disciplinary action;
b. A formal investigation process with a disciplinary outcome; and
c. An employee onsite program to support victims of bullying so they stay at work, overcome the issue, have their self-esteem restored and develop resilience.
5. Ensure that all steps of the complaint and solution process are kept, and required to be kept confidential to avoid gossip and workers taking sides in the workplace.
Caution
Unless you have the above process it is likely that any disciplinary action taken by you will fail. You must have a bullet proof process and enforce it.
Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.
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