Workplace Bullying and Harassment: how your organisation can meet its obligations to provide a safe workplace

Bullying and harassment can happen in any workplace and can have a detrimental effect on employees and employers. It is crucial that employers understand their obligations under applicable occupational health and safety (OHS) legislation to ensure incidents of workplace bullying and harassment are minimised.

There are procedures employers can develop and implement in order to:

• comply with their obligations under occupational health and safety laws; and
• manage the risk of, and response to, incidents of bullying.

Overview of OHS laws dealing with bullying

OHS laws differ in each state and territory.

Over the course of 2007 and 2008, the Council of Australian Governments (COAG) agreed to harmonise OHS legislation to:

• create a uniform OHS legislative framework across the states and territories; and
• implement a nationally consistent approach to compliance and enforcement.

In 2010, to assist the states and territories in this process, the Federal Government introduced the model Work Health and Safety Act 2010 (WHS Model Act)^[1].

The table below sets out:

• the relevant OHS legislation in each state and territory;
• the relevant section of the legislation that places a duty on employers to maintain a workplace free from risks to employees' health and safety; and
• the commencement date of the uniform legislation (where relevant).

Employers must prevent bullying and harassment

The OHS legislation generally provides that an employer has an obligation to, as far as reasonably practicable, provide employees with a working environment that is safe and free from risks to the their health^[2]. Accordingly, an employer has an obligation to prevent bullying and harassment, behaviour which can lead to both psychological and physical injury.

How are 'bullying' and 'harassment' defined?

Legislation does not define the concepts of 'bullying' and 'harassment'. Generally, bullying in the workplace is regarded as repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety, whether it is direct or indirect or intended or not^[3].

As part of the OHS harmonisation process, Safe Work Australia developed a draft code of practice 'Responding to Workplace Bullying' (Code). The Code aims to provide practical guidance on what bullying is, how to prevent bullying becoming a health and safety risk in the workplace and what to do if bullying occurs.

The Code sets out examples of direct and indirect bullying including:

• abusive, insulting or offensive language (direct);
• spreading misinformation or malicious rumours (direct);
• displaying offensive material (direct);
• unreasonably overloading a person with work or not providing enough work (indirect);
• setting tasks that are difficult to achieve or constantly changing deadlines (indirect); and
• withholding information that is vital for effective work performance (indirect).

What are the penalties and remedies?

General

OHS legislation sets out a range of penalties and other remedies that may be imposed. Where a less serious OHS risk is apparent, an employer may be served with:

• a notice requiring a breach to be remedied;
• a notice requiring a certain activity to cease; or
• an infringement notice.

Serious Breaches

For more serious breaches, the state or territory's statutory authority (such as WorkSafe or WorkCover) can prosecute an employer or employee if it determines that there is reasonable prospect of a conviction of a criminal offence. Where a prosecution results in a finding of guilt, a range of sentencing options are available. Depending on the nature of the offence, these may include monetary fines and imprisonment.

In addition to the employer's duty set out in the Occupational Health and Safety Act 2004 (Vic), Victoria introduced its first anti-bullying legislation in June 2011, known as Brodie's Law^[4]. Brodie's Law makes serious bullying a crime punishable by up to 10 years imprisonment. This legislation was introduced after the suicide of a young woman who had been subject to serious, relentless bullying in her workplace. Brodie's Law applies to all forms of serious bullying including physical bullying, psychological bullying, verbal bullying and cyber bullying, whether in the workplace or elsewhere.

Compensation

Courts may also award compensation to victims in serious cases of bullying.

Who is responsible?

The primary responsibility for the conduct falls on the perpetrator. The employer and its officers will also be prosecuted for breaches of the relevant OHS legislation if, generally speaking, it is determined that they failed to take reasonable care. An officer may include a director, chief executive officer, managing director or general manager.

Developing and implementing appropriate policies in the workplace to manage risk

All workplaces must have appropriate measures in place to provide a work environment that is safe and free from risks to employees' health, and to prevent and respond to bullying at work. These measures include appropriate policies and training.

Policies

It is important for a workplace to develop and implement a policy on bullying and harassment. This policy should:

• include a definition of what constitutes bullying and harassment (with examples of this behaviour), and the consequences for breaching the policy;
• set out acceptable standards of behaviour;
• make a clear statement that inappropriate behaviour will not be tolerated; and .
• cover the course of action which will be taken in response to a report of bullying and harassment.

Training

A workplace should ensure employees undertake regular training so they understand their roles and responsibilities in the workplace. Useful topics to cover during training include:

• workplace policies and procedures, including how the organisation deals with bullying and harassment;
• how to deal with bullying and/or harassment;
• how to report bullying and/or harassment;
• risk assessment; and
• measures used to prevent bullying and/or harassment in the workplace.

New employees should be provided with the above material in their induction and refresher training should be implemented at regular intervals.

How does the Cleardocs Human Resources Manual deal with workplace bullying and harassment?

The Cleardocs Human Resources Manual (Manual) empowers victims of perceived bullying to follow the complaints procedure set out in the Manual.

The content of the Manual includes:

• a definition of bullying;
• examples of bullying;
• a statement that harassment is a disciplinary offence which may result in the employer taking disciplinary action; and
• a clear policy statement on the avoidance of harassment (Policy).

The Policy notes that any form of harassment will not be tolerated and makes employees aware that they must cooperate with employers to ensure workplaces are free from harassment.

More information from Maddocks

For more information, contact Maddocks on (03) 9288 0555 and ask to speak to a member of the Employment, Safety & People team.

More Cleardocs information on related topics

You can read earlier ClearLaw articles on HR topics here.

Order Cleardocs Employment & HR document packages

• HR Policies and Procedures Manual
• Standard Employment Contract
• Independent Contractor Agreement

[1] The WHS Model Act was amended in 2011, and is supported by model regulations.

[2] Section 21 of the Occupational Health and Safety Act 2004 (Vic) and section 17 of the Workplace Health and Safety Act 2010 (Cth).

[3] WorkSafe Victoria, Preventing and responding to bullying at work booklet, see http://www.worksafe.vic.gov.au/forms-and-publications/forms-and-publications/preventing-and-responding-to-bullying-at-work.

[4] Crimes Amendments (Bullying) Act 2011 (Vic) amending the Crimes Act 1958 (Vic).