A healthy and safe work environment is important for both employers and employees. Both have obligations under Tasmanian and federal laws to ensure that workplace practices are safe and non-discriminatory; this extends to ensuring that a workplace is free from bullying and harassing behaviour.
What constitutes bullying and harassing behaviour can be very subjective; significantly damaging behaviour toward an individual can depend on their education, gender, and antecedents.
Bullying is rarely defined under legislation, with the exception of Part 6-4B of the Fair Work Act 2009. It contains a very loose definition of bullying as repeated unreasonable behaviour toward a person or persons which poses a risk to safety and health.
Those kinds of behaviours which may constitute bullying include ostracism, sabotage, verbal abuse, degrading behaviour, nit-picking and making unreasonable demands. It can include communications conducted over email, telephone or social media. For bullying behaviour to be connected with the workplace and therefore unlawful and actionable, it does not have to be conducted merely in the actual workplace. Work trips including field trips, excursions and overnight stays and work-related functions such as end of financial year parties can all be occasions where bullying and harassing behaviour occurs.
An employer may be held vicariously liable (legally liable) for the unlawful bullying behaviour of one of its employees, directors or agents towards another worker if it has not done what is reasonable, necessary and practicable in order to prevent the behaviour from occurring. Most lawyers will therefore recommend that an employer implement workplace equal opportunity and anti-bullying policies as well as other safe work policies and grievance resolution procedures. New employees, contractors or agents should be inducted and trained in the policies at the commencement of their employment or engagement with the employer.
Employees who are experiencing bullying behaviours should bring a complaint to their employer, utilising grievance resolution procedures. If the complaint is unresolved internally then they may consider taking legal action.
If you are employed by a corporation or the Commonwealth government and you are experiencing bullying or harassment, you may be able to bring an application to the Fair Work Commission pursuant to section 789FC for an order that the perpetrator stop bullying. The Commission is obliged to look into the application within 14 days of the application being made, which allows for a quick resolution of complaints.
Breach of an order to stop bullying may result in a civil penalty being imposed of up to 60 penalty units.
The Tasmanian Work Health and Safety Act 2012 specifies that an employer has a primary duty to ensure that safety and health risks are eliminated, or if it is not possible to eliminate them, to minimise them as far as is reasonably practicable. This duty extends to officers and workers personally; they must ensure that they do not put themselves or others in the workplace at risk. As bullying and harassing behaviour poses a risk to safety and health, it may constitute a breach of the legislation.
An employer must ensure that training and induction into proper systems and workplace practices (such as equal opportunity and bullying and harassment) must take place. Employers and workers may be prosecuted for breaches of the legislation. The Act also prohibits discriminatory conduct toward a person because they have exercised, or have proposed to exercise, rights under that legislation to report a work hazard. Both civil and criminal proceedings may be instituted in relation to such conduct.
The Tasmanian workers’ compensation scheme is legislated pursuant to the Workers Rehabilitation and Compensation Act 1988. If a physical or mental injury arises out of bullying behaviour directed towards an employee, that employee may be able to bring a claim for worker’s compensation with the Workers Rehabilitation and Compensation Tribunal.
If you have suffered illness or injury resulting from bullying, you ought seek medical attention immediately, notify your employer as soon as possible and provide your employer with medical certificates for any leave taken as a consequence. Illness that results from reasonable management action is not compensable.
Under section 143L of that Act, an employer is obliged to keep open an injured employee’s position for a period of 12 months from the date the employee becomes partially or totally incapacitated for work.
Some forms of bullying and harassment may also constitute discrimination or inciting hatred . For example, sexual harassment is a form of sex discrimination and is unlawful under the Anti-Discrimination Act 1988, the Sex Discrimination Act 1984 and section 351 of the Fair Work Act 2009. Work functions, such as Christmas parties, where alcohol is involved and people let their hair down, can often be occasions where inappropriate behaviour is escalated. In these situations, employers ought to remind their employees prior to the start of the work function that the function is an extension of the workplace and behaviour which is in breach of equal opportunity policies will not be tolerated.
The Anti-Discrimination Act 1988 also makes acts which incite hatred unlawful. If a behaviour constitutes a public act (eg, it is observable by the public, or involves the dissemination or distribution of materials to the public) and causes severe hatred, ridicule or contempt toward a person of a particular race, sexuality, religious affiliation or disability, then it is unlawful.