Workplace bullying &
There is a varied framework of bullying and harassment legislation that applies to the workplace.
At a very general level, under work health and safety (WHS) laws, employers must provide their employees with a safe place to work. This means that unless employers have done all they reasonably can to prevent bullying or harassment occurring, the employer could be found to be in breach of WHS legislation (given the obvious risks to someone’s health when they are bullied or harassed).
In terms of specific workplace bullying legislation, under the Fair Work Act 2009 (Cth) there is an ability for employees to apply for orders from the Fair Work Commission to stop bullying. There is also a raft of legislation that deals with bullying and harassment where that conduct is on the basis of particular characteristics protected by discrimination law (race, age, sex, sexuality, etc). In particular, the Sex Discrimination Act 1984 (Cth) is legislation that protects employees from sexual harassment.
Workplace bullying & harassment claims
Employers can be held liable for the actions of their employees (and so can be subject to claims from employees who have been bullied or harassed by a coworker). It is therefore vital that employers take adequate steps to do all that they reasonably can to prevent bullying and harassment occurring in the first place.
At a very basic level this requires employers to have workplace policies in place that clearly sets out what conduct is prohibited in the workplace. Such policies should be properly implemented and where necessary, employees should be given training on the practical application of the policies. The ways employees can raise complaints or concerns about bullying and harassment should also be clearly set out in the policy.
Without such policies being in place it will be very difficult for an employer to defend a claim against the business – even if they did not know the bullying or harassment was taking place – as they are unlikely to convince a court they took all reasonable steps from preventing the behaviour from occurring. Compensation for workplace bullying and compensation for harassment at work can involve huge sums and can be crippling for a business.
Where an employer is put on notice that bullying or harassment may be occurring, it is essential that the matter is investigated promptly and that the employer takes appropriate action if they find that an employee has behaved inappropriately.
Investigating workplace bullying & harassment
Investigations are key in dealing with workplace bullying and harassment. The risks for employers where bullying and harassment is alleged to have occurred are two fold: firstly there is the risk that the victim of any such conduct will not be satisfied with an employer’s handling of the matter; secondly there is a risk that if the company takes action against an employee found guilty of bullying and harassment (for example by dismissing them) that this will lead to a claim by the employee whose employment is terminated (for example a claim in unfair dismissal).
To guard against such risks it is vital that a proper bullying and harassment investigation is carried out which will then allow the employer to form a proper basis for making decisions on whether the allegations are proven and the appropriate action to take. An investigation which is flawed (because, for example, not all relevant witnesses were interviewed) will invariably mean that any decision taken in reliance on the investigation will also be found to be flawed.
Many employers choose to outsource investigating bullying in the workplace to lawyers, given lawyers are used to wading through evidence and advising on disputed facts. An external investigator also allows companies to obtain an impartial view on the situation and avoids subjecting one of their own employees to the harrowing task of investigating misconduct by one of their colleagues.
If you need assistance in this area – whether by drafting appropriate policies, delivering training to staff, investigating inappropriate conduct or representation in a bullying and harassment claims – EI Legal can help. Contact us at our offices for a confidential discussion with one of our expert employment lawyers.
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