Watch for workplace bullies

A new Federal Court case confirms that bosses who turn a blind eye to mistreatment of employees are making a very expensive mistake. But what exactly is bullying? PETER VITALE explains.

Bullying can take many forms, from spreading rumours to physical violence. Employers should have procedures to deal with claims of grievances, and for disciplining employees found guilty of bullying.  

By Peter Vitale

A recent decision of the Full Court of the Federal Court of Australia has highlighted the need for employers to have in place effective measures to eliminate bullying from the workplace.

The court affirmed the decision of a single judge to award a former employee of a merchant bank about $500,000 in damages for psychological illness caused by bullying.

Peter Nikolich, a private investment adviser, complained to his employer, Goldman Sachs JB Were, about the behaviour of his immediate boss. He said that he was subjected to a series of malicious personal attacks, verbal abuse and insults, and his clients had been reallocated to other colleagues.

In the court he successfully argued that the failure of Goldman Sachs to deal with the complaint quickly and effectively was a breach of the company’s own policies and procedures and constituted a breach of his employment contract.

The case highlights that employers must pay attention to any circumstances in their workplace which might constitute bullying of one employee by another or face big penalties.

All of the state occupational health and safety authorities identify bullying as a serious occupational health and safety issue. Employers who are found not to have taken steps to prevent bullying in the workplace have been subjected to penalties for breaches of the law.

But what exactly is bullying? The definition is often vague. One state authority defines it as: “repeated, unreasonable behaviour directed to an employee or group of employees that creates a risk to health and safety”.

The same authority goes on to provide the following examples of the kinds of behaviour that might constitute bullying, including:

• Practical jokes; being sworn at.
• Someone insulting you.
• Being excessively supervised.
• Being constantly criticised.
• Being put down in public.
• Rumours being spread about you.
• Being overloaded with work or not given enough work to do.
• Not getting the information you need to do your job.
• Your personal effects or work equipment being damaged.
• Being threatened with the sack.

Unfortunately, many of the examples sound like things that happen to all of us at some point in our working lives. It is not always bullying.

A few examples drawn from cases decided by the courts, not just in relation specifically to OHS breaches, offer some guidance to employers about what behaviour really needs to be cracked down on.

• A worker who was found guilty of punching and biting an apprentice and hoisting him by his overalls into the air with a crane.
• Intimidating fellow employees by use of verbal abuse and threats of violence.
• Serial racial and sexual vilification, verbal and physical abuse carried out over a period years.
• Verbal abuse and threats of violence and removing the employee’s work and reallocating it to another employee.
• Allowing employees to engage in a pattern of behaviour that effectively undermined their supervisor.
• Failing to address a persistently excessive work overload.
• Placing an employee at a work station facing a blank wall with her back to work colleagues.
• Verbally and physically intimidating behaviour by an employee toward a fellow employee who had previously made a complaint about the behaviour of the first employee.
• Using a performance review process to ‘squeeze’ an employee for an illegitimate reason.

Employers that don’t crack down on this sort of behaviour can find themselves in court as a result of a claim of unlawful discrimination that occurs as a result of the bullying behaviour, for constructive dismissal where the conduct has the effect of ‘forcing’ the employee to resign, and for damages for personal injury as a result of psychological illness.

The lesson for employers:

Care needs to be exercised in treating everything that is called ‘bullying’ as actually constituting bullying; done properly, legitimate exercise of management authority will not constitute bullying. The how is just as important as the what.

Make sure you have a procedure for dealing with grievances and discipline of employees guilty of bullying.

Be aware that bullying behaviour exposes employers to more extensive risks than breach of OHS laws, including claims for substantial common law damages.