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Myths And Misconceptions About Workplace Bullying By Josh Bornstein

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How to deal with workplace bullying remains contentious. Read my speech as I examine the myths and misconceptions about workplace bullying.

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Page 1: Myths And Misconceptions About Workplace Bullying By Josh Bornstein

The Myths and Misconceptions about Workplace Bullying

Bullying, whether in the school yard or workplace, attracts its fair share of public

interest and controversy. This can be partly explained by some of the spectacularly

nasty cases that excite public attention. In the last week, a fierce twitter bullying

campaign by what are described on twitter as “trolls” provoked an apparent suicide

attempt on the part of the victim. She was bombarded by tweets abusing her and

suggesting ways for her to kill herself. She gave up and at 2am tweeted “you win”

before attempting suicide.

How to deal with workplace bullying also remains contentious. Although there is

almost a consensus that workplace bullying is not currently well managed, opinions

divide sharply thereafter on what policy or legal response should be made. A Federal

Government inquiry into the matter has recently concluded. It’s findings and

recommendations are not yet published.

I intend to argue that in order to reduce the incidence of workplace bullying, a new

policy and legislative approach is overdue. I will do so in the context of briefly

examining some of the myths and misconceptions that this issue attracts.

1. Workplace Bullying is Illegal

This myth that bullying in the workplace is illegal is the one I am most frequently

confronted with in my legal practise representing employees. Many employees

assume that bullying, per se, is unlawful and actionable. They are both surprised and

disappointed when I explain that the assumption is wrong.

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Contrary to popular belief and despite the apparent scale of the phenomenon, there

is no statutory scheme in Australia that proscribes bullying. The lack of a law that

explicitly deals with workplace bullying is anomalous for reasons I will deal with later.

Bullying is alleged most commonly in personal injury cases, whether employees are

seeking weekly payments, medical expenses or a common law claim brought under

the provisions of the Accident Compensation Act 1985 (Vic). In order to be paid lump

sum compensation under s 98C of the Accident Compensation Act 1985 (Vic) for a

psychiatric injury, it is necessary to demonstrate 30% whole person impairment – an

extremely high threshold to meet. This is compared to 5-10% whole person

impairment for physical injuries. In order to sue at common law for a psychiatric

injury, a bullying victim must demonstrate that they have suffered 30% whole person

impairment, or a 'serious injury' in accordance with the tests set out in the Accident

Compensation Act 1985 (Vic). It is an onerous obligation. The victim will also need to

establish negligence on the part of the employer, and the forseeability of sustaining

the type of injury they are suffering.

The bottom line is that in order to be able to sue to recover damages over workplace

bullying, an employee must be severely psychiatrically damaged.

Employees who suffer serious psychiatric injury through workplace bullying may also

have insurance benefits by virtue of their membership of a superannuation fund. For

example, many super funds provide automatic insurance to their members for

temporary or total and permanent disability.

Workplace bullying may involve a breach of Occupational Health and Safety (”OHS”)

legislation. Again, bullying is not expressly dealt with in OHS legislation. Rather, an

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employer or individual employees may be prosecuted for breaching the requirement

to maintain a safe workplace. The victim cannot pursue or institute a prosecution.

Brodie’s law is not a bullying law but a stalking law1. It has no application to the

overwhelming majority of workplace bullying cases as it applies to extreme stalking

behaviour. In my view, it is a “dead letter’, a law that may have been well intentioned

but sits on the statute books unused.

Bullying behaviour is often alleged in cases alleging unlawful discrimination under

both federal and state statute. The relatively new s.351 of the Fair Work Act 2009

(Cth) (‘the Fair Work Act’) may be invoked in similar situations. That section

prohibits a person from taking adverse action where such action is motivated by the

sorts of attributes commonly protected by anti discrimination legislation.

One can see from this brief survey of workplace laws that bullying and the law have

some interaction. However, that interaction is haphazard, indirect and reactive.

2. There is no definition of Workplace Bullying

It is often suggested that legislating to directly address and prohibit workplace

bullying is impossible because there is no universally accepted definition of

workplace bullying.

It is also asserted that workplace bullying is impossible to define. It is “just so

subjective”, proclaim the critics and the white anters.

These claims are, to use an old fashioned technical legal expression, nonsense.

1 See Crimes Act 1958 (Vic) s 21A

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Most OHS regulators use working definitions of bullying that are remarkably similar.

In the Draft Code of Practice released on Preventing and Responding to Workplace

Bullying in 2011, Safe Work Australia defined the term to mean ‘repeated,

unreasonable behaviour directed towards a worker or a group of workers that creates

a risk to health and safety’2.

The Code further defined the concept in two ways. Repeated behaviour is said to

refer to the “persistent nature of the behaviour and can refer to a range of behaviours

over time”3. Unreasonable behaviour is, described as “behaviour that a reasonable

person, having regard for the circumstances, would see as victimising, humiliating,

undermining or threatening”4.

Underlying the debate about whether workplace bullying can be defined and

legislation regulating it introduced is a genuine problem. Bullying can and does

manifest itself in a remarkably diverse range of behaviours. The only limitation on

these behaviours is the parameters of the human imagination. It is not possible to

give an authoritative and exhaustive list. In this way, it is a complex phenomenon.

People may also disagree about whether certain behaviours constitute bullying.

There can also be no real argument that the term is loosely bandied about and from

time to time, misused. Employees who have received a poor performance review or

who undergo genuine performance management may wrongly cite workplace

bullying.

Several observations may be made about this sort of debate.

2 Safe Work Australia, Draft Code of Practice – Preventing and Responding to Workplace Bullying (September 2011) Safe Work Australia, 4 < http://www.safeworkaustralia.gov.au/sites/swa/Legislation/PublicComment/Pages/Model-WHS-CoP-Public-Comment.aspx>. 3 Ibid.4 Ibid.

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First, I ask have you ever known anyone to concede or admit that he or she is a bully

at work. Invariably, bullying is denied by the alleged perpetrator. Secondly, I

rhetorically ask each and every one of you:

(a) have you witnessed or experienced bullying in the workplace?; and

(b) have you experienced or witnessed bullying allegations that lack merit?

Most people I speak to answer both these questions in the affirmative. I do too.

Why then is it so difficult to imagine a judge or tribunal member making the same sort

of judgments based on evidence presented in a particular case? Is it impossible to

decide what is “repeated unreasonable behaviour” in a particular context?

These are the sorts of judgments that our courts and tribunals exercise every day.

Unfair dismissal laws have existed in this country for almost 40 years. Despite the

mischievous and misleading rhetoric about their effect on job creation, the reality is

that the sky is still roughly in the same trajectory that it was when these laws were

introduced. Judges and tribunal members have been making decisions based on

what is fair in the circumstances of each case for all of that time.

That people lack a clear understanding or definition of a particular problem is not

exactly new either. Again my colleagues and I routinely consult employees who

complain that they have been “defamed” or subjected to “discrimination” when on

closer analysis that is simply not the case. Their understanding of those concepts is

frequently wrong.

There is no doubt that much more can and should be done to educate employers and

employees about the nature of bullying. A shared understanding is in the interests of

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all of us. Indeed, it is in the interests of those wrongly accused of bullying for there to

be a better understanding of what is and what is not workplace bullying.

3. Workplace Bullying is a misguided reference to a Personality Conflict

It has become fashionable by some commentators and OHS professionals to claim

that all too often, bullying claims are unfounded and simply a misguided reference

to a personality conflict or relationship breakdown. When I hear such claims, I

imagine a mythical family court judge lamenting that if it wasn’t for personality

conflicts or relationship breakdown, there would be no need for divorce.

This is a myth and/or misconception generated principally by OHS regulators and

bottom-feeding IR consultants seeking to drum up work.

It is often invoked in response to criticisms about the lack of effective policing

undertaken by such regulators. We all know that there are large numbers of bullying

complaints each year. A fraction are investigated by the regulators. A fraction of that

fraction are upheld. The vast majority are “not substantiated”. An even smaller

fraction result in a prosecution.

Underlying these trends are genuine difficulties experienced by OHS investigators in

bullying cases. To put it crudely, there is no “blood on the floor”. Mental health

damage is often invisible to the eye. Bullying behaviours are often subtle or

Machiavellian and an accomplished bully can often construct a defence of plausible

deniability.

As the Productivity Commission has observed:

"OHS inspectors generally find psychosocial issues in the workplace

harder to address than physical hazards. OHS inspectors responded in a

survey that they found it much harder to get employers, particularly small

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manufacturing firms, to deal with psychosocial factors. They also found

cases of bullying to be much more difficult to resolve. Inspectors described

bullying cases as being emotive and involving a range of different individual

interpretations of the events, making it more difficult to substantiate a claim.

As a result of these difficulties, some inspectors reported that they were

reluctant to handle psychosocial complaints (Johnstone, Quinlan and

McNamara 2008)"5.

Personality conflicts are inevitable in any workplace. Workplace bullying is not

inevitable in the workplace. A personality conflict can develop into workplace bullying

depending on the behaviour of the protagonists. At the same time, personality

conflicts can coexist with a professional and civilised work environment.

Personality conflict or relationship breakdown are at the heart of almost all workplace

bullying cases.

4. Workplace Bullying is a safety issue

One of the keys to sensible legislative and policy reform on workplace bullying is to

remove it from its current legal and cultural designation as an occupational health

and safety issue.

There are 2 bases for my view. The first is a matter of principle; the other driven by

more pragmatic considerations.

First and foremost, workplace bullying is illegitimate and destructive behaviour. It is

illegitimate whether an injury is caused or threatened. It raises questions of how we

treat each other at work. A workplace free of bullying requires a standard of

behaviour, of civilised discourse and interaction.

5 Productivity Commission 2010, Performance Benchmarking of Australian BusinessRegulation: Occupational Health & Safety, Research Report, Canberra, 299

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Workplace bullying is illegitimate in much the same way that unlawful discrimination

is. Both can cause a compromised health and safety environment. Both can cause

catastrophic damage to health but it is only bullying that remains pigeon-holed in the

occupational health and safety and personal injury sub-culture.

The pragmatic reason is this: confining workplace bullying to the realms of OHS

hasn’t worked and it won’t work.

For far too long, we have accepted a system which entrusts the regulation and

policing of this issue to state based regulators. Workplace regulators and OHS

professionals are often overwhelmed by the volume of workplace bullying complaints.

They quickly become jaded by workplace bullying. They suffer “compassion fatigue”.

It is too easy to not investigate or reject a bullying complaint as based on, e.g. a

personality conflict.

In Victoria, we have WorkSafe. Like all other state funded regulators, it is simply not

resourced sufficiently to manage the volume of workplace complaints it receives. It

investigates a tiny fraction of complaints6.

Although it achieved a successful high profile prosecution in the Brodie Panlock

case, the employer and the bullies were fined 4 years after Ms Panlock committed

suicide. Even in that case, I understand that there may have been a reluctance within

the agency to pursue that matter.

We have accepted a second rate system for too long.

Those who have represented victims of unlawful workplace discrimination will be all

too aware that it too has a corrosive impact on the mental health of employees who

6 Rachel Wells, ‘Most workplace bullying claims fall short’, The Age (Online) July 24 2011 < http://www.theage.com.au/victoria/most-workplace-bullying-claims-fall-short-20110723-1hub7.html>

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experience it. Quite sensibly, we do not require proof of a risk to health or safety for

the legal system to provide redress and protection under anti discrimination law.

I advocate law reform that allows victims of workplace bullying to take a complaint to

a tribunal or court well before the situation has escalated to the point of irreversible

damage to an employee’s health. We need a system that allows early intervention

that maximises the chances of health and preserving the employment relationship.

I suggest that consideration be given to amending the Fair Work Act to allow this to

occur. The Fair Work Act has national reach. A civil remedy provision proscribing

bullying could be introduced. An affected person could bring a case. Either Fair Work

Australia, the Federal Court or Federal Magistrates Court could have a role. Broad

remedial powers would be appropriate.

Regulators could have a complementary role. For example, the Fair Work

Ombudsman currently can initiate proceedings in respect of unlawful workplace

discrimination as can employee victims. I see no reason why a similar approach

could not be taken in the case of workplace bullying.

OHS laws impose obligations on employers to provide employees with a safe

workplace so far is reasonably practicable. When bullying is sufficiently serious, a

complaint can be made alleging the employer has failed in its obligations. Once a

complaint is made, an investigation may take place. If the outcome of that

investigation identifies a breach of OHS laws, a prosecution of the employer and

relevant employees may follow. This process can take several years. The process of

investigating bullying complaints is slow and ineffective as it is conducted by

workplace inspectors who are also monitoring the compliance of OHS legislation

more widely.

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Additionally while there are implications for the employer if found to have breached

OHS laws, there are no legal remedies for the victim of the workplace bullying which

affects the efficacy of pursuing workplace bullying under OHS legislation. In addition

by the time the OHS process unfolds, the damage to a bullying victim has been done,

often irreparably.

5. Employers should address Workplace Bullying by codes of conduct and

policies

The era of the workplace policy or code of conduct being the key to managing

workplace culture is well and truly over.

David Jones had a state of the art policy on sexual harassment when it faced serious

allegations about the conduct of its then CEO in 2011. Indeed, in most cases of

harassment and bullying that I deal with there is a terrific workplace policy prohibiting

the conduct my client alleges.

It is one thing for employers to purchase a vanilla workplace policy off the internet or

from law firms or consultants. It’s altogether another to actually manage workplace

culture. The gulf between culture and policy can and is often significant. Bridging that

gulf requires sustained hard work and enlightened management.

There are several other factors that militate against reliance on workplace policy and

codes of conduct. They relate to compliance.

First, many employers now have their workplace policies “legalled” so that the policy

can’t be enforced by employees. It is standard for such policies to be expressed to

apply to the employee but at the same time to state that they do not form part of the

employee’s contract of employment. Such provisions have been common in the

aftermath of Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC

120, in which the Federal Court found that a policy prohibiting workplace bullying was

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an enforceable term of the employee’s employment contract and awarded substantial

damages for breach.

Secondly, in larger workplaces, it is left to human resources managers to effectively

police workplace policies.

What happens if the alleged bully is the boss? Self preservation for the beleaguered

human resources manager dictates the answer here. Very little. Or worse, the

complainant is removed or sacked.

And for those who suggest that this must occur rarely, I want you to reflect on some

of the “strong personalities” who have or continue to lead companies, schools,

political parties, sporting organisations, religious institutions and so on. Is it possible

that some of them are or were bullies?

There is a fundamental ambivalence about bullying in our society which deserves a

far more profound analysis than I can provide today.

When we are confronted with strong examples of bullying, we tend to abhor it. At the

same time, we reward many of those who are particularly adept at perpetrating it.

The kid in the playground with all the tonka toys and kicking sand in other kids’ faces

may grow up to be the CEO or leader of a church or political party.

6. Workplace Bullying should be criminalised

Following the tragic suicide of Brodie Panlock in 2010, new provisions were

introduced into the Crimes Act 1958 (Vic) to try and incorporate serious bullying

behaviour into the offence of stalking. The Crimes Amendment (Bullying) Act 2011

(Vic) was introduced to expand the definition and scope of stalking under the Crimes

Act 1958 (Vic).

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The definition of stalking under s 21A was expanded to include among other things

making threats to the victim, using abusive or offensive words to or in the presence of

the victim, performing abusive or offensive acts in the presence of the victim and

directing abusive or offensive acts towards the victim7. A course of conduct which the

offender ought to have understood would be likely to cause the victim harm including

self-harm was also included in the definition8.

The maximum penalty for stalking is 10 years imprisonment and therefore provides a

punishment to the perpetrator of bullying if found guilty, although not a direct remedy

to the victim.

Similar amendments were also added to the Stalking Intervention Orders Act 2008

(Vic)9 and the Personal Safety Intervention Orders Act 2010 (Vic)10, so that the three

Acts are consistent and victims of serious bullying can make applications for the

issue of intervention orders.

In recent response to the Federal Government Review into Workplace Bullying, the

ACTU has suggested that it would support the criminalisation of workplace bullying11.

Others have called for Brodie’s law to become a national law.

I couldn’t disagree more.

Criminal law should only intrude into the workplace in extreme situations. Most

bullying cases are not criminal matters.

7 See Crimes Act 1958 (Vic) s 21A8 Crimes Act 1958 (Vic) s 21A (3) 9 See Stalking Intervention Orders Act 2008 (Vic) s 410 See Personal Safety Intervention Orders Act 2010 (Vic) s 1011 Australian Council of Trade Unions, (ACTU) Submission To the House Standing Committee on Education & Employment, Inquiry into Workplace Bullying, 4 July 2012, 8

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Those bullying cases which involve actual or threatened assault do not require new

criminal laws. Existing provisions of the Crimes Act 1958 (Vic) will suffice.

While Brodie’s law has been symbolically important, at a practical level it has been

next to useless. It does not apply to 95% of bullying situations. Even if it was

amended to change that, it is deeply flawed. To give but one illustration of its flaws,

imagine you are an employer and an employee turns up to work on Monday

brandishing an intervention order prohibiting another employee from going within 100

metres of him or her.

Just as state based OHS bureaucracies are ill-equipped to manage bullying

compliance, our police forces have scarce resources and will not deploy them to deal

with workplace bullying.

7. The Way Forward

The Federal Government is currently conducting a review into bullying in the

workplace and the terms of reference are directly addressed at “gaps that should be

addressed in the interests of enhancing protection against and providing an early

response to workplace bullying, including through appropriate complaint

mechanisms”12.

Before I am criticised for advocating the expansion of the “nanny state”, can I remind

you of some of the protections currently enjoyed by employees under federal law.

Employees are protected from:

(a) being misled about an aspect of workplace bargaining;

12 Commonwealth of Australia, Inquiry into Workplace Bullying – Terms of Reference, Parliament of Australia < http://aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ee/bullying/tor.htm>

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(b) being exposed to undue influence or pressure to accept a guarantee of

annual earnings;

(c) being subjected to a false or misleading representation about workplace

rights; and

(d) punitive retaliation for making a complaint to the employer about an aspect of

their employment under the Fair Work Act.

Indeed, an employee who complains that another employee is being subjected to

bullying is protected from adverse action. The bullying victim has no such protection.

The political climate is ripe for a push for significant law reform in this area. It is

evident that the current legal system does little to afford victims of workplace bullying

with effective options to address the situation.

In recent months, we have heard a considerable amount of rhetoric and commentary

about the supposed drain on productivity attributed to Australia’s workplace relations

system. Virtually none of this commentary is evidence based. It grossly over-

simplifies the nature of productivity and the constituent parts that are involved in

affecting our productivity performance.

In the case of workplace bullying, the science is in. The Productivity Commission

reported on the issue in 2010. Its report confirmed that workplace bullying is a multi

billion dollar productivity-sapping industry. Employer organisations and CEO’s are far

more comfortable in advocating the removal of penalty rates or the benefits of

individual contracts. Why?

An investment in an educational campaign about workplace bullying, together with

the legal reform, I suggest would reap a huge dividend by saving millions in lost

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productivity, healthcare costs and social welfare payments. It would enhance

managerial skills and improve the quality of life of employees.

I look forward to a modern effective approach to workplace bullying in this country.

Bring it on.

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