Do you know what constitutes workplace bullying?

Several decisions on bullying have been handed down in commissions and courts over the last couple of months, with the first anti-bullying order being revoked, and the Fair Work Commission clarifying what constitutes bullying "at work".

Here, I summarise just a few bullying-related stories that OHS Alert - the news service I write for and sister site to HR Daily - has covered recently.

In one of them, a commission found workplace "cliquiness" didn't necessarily constitute bullying or harassment, and in another, a worker's earning capacity was destroyed by workplace bullying.

Anti-bullying decisions good news for employers

A recent Fair Work Commission full bench decision (which defined the meaning of "at work"), and other bullying-related rulings are good news for employers, according to Hall and Wilcox Lawyers partner Kerryn Tredwell.

In December, the bench rejected an employer's application to strike out a number of bullying allegations made by three workers seeking stop-bullying orders, but also rejected the workers' claim that bullying conduct "occurs 'at work' if the conduct has a substantial connection to work", as specified in other legislation.

"It seems to us that the concept of being 'at work' encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)," the bench said.

According to Tredwell, "confining the operation" of the anti-bullying provision in this way is welcome news for employers, who might have been drawn into expensive and time-consuming proceedings involving "broad allegations of activity occurring outside the workplace".

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

First and only anti-bullying order revoked

The Fair Work Commission's first and only substantive stop-bullying order has been revoked, with the applicant submitting that the FWC process had all but eliminated the conflict between her and the bully.

Last March, Senior Deputy President Lea Drake accepted the Sydney worker's application for an order to stop bullying, and directed a male colleague not to comment on the worker's appearance, to refrain from sending her emails or texts except in emergency situations, and not to raise "work issues" unless first notifying a senior executive.

Following an additional conference on the matter, Senior Deputy President Drake amended the orders in September, and flagged the possibility of dismissing them and allowing the workplace to take over managing the relationship between the worker and the bully within six months.

She then received an email from the worker stating that since their last meeting "there has been a negligible amount of conflict between [the male worker] and myself, and I have felt comfortable approaching my supervisor... with any concerns that I have".

In December, Senior Deputy President Drake revoked her September orders.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

Bullying and accusations 'destroy' earning capacity

A worker who suffered a severe mental disorder as a result of bullying has been granted leave to sue two non-profit organisations for damages.

In a 151-page decision, the Victorian County Court heard the worker suffered severe anxiety and depression while employed by Make-A-Wish Foundation in 2004, after the new CEO bullied, intimidated and humiliated her in front of colleagues.

She subsequently attempted suicide, and then claimed workers' compensation, before returning to employment with the Starlight Foundation of Australia Ltd in 2006.

A Make-A-Wish representative then sent an email to Starlight containing "scandalous and defamatory" comments about the worker, which triggered "toxic" office gossip, leading to an exacerbation of the worker's depression.

Judge Jeanette Morrish granted the worker leave to sue the employers for pain and suffering and pecuniary loss damages, after she found it was "the bullying, intimidation and harassment at Make-A-Wish that caused the [worker's] initial depression and anxiety".

Starlight was not responsible for the initial trauma, she said, but "the further acts of bullying, harassment and intimidation by Starlight employees against the [worker], contributed to a severe deterioration in [her] condition, ultimately resulting in a total destruction of her earning capacity".

Read the full story here on OHS Alert. (This article has been unlocked for non-subscribers to read.)

Workplace clique didn't bully worker

The Queensland Industrial Relations Commission has found workplace "cliquiness" doesn't necessarily constitute bullying and harassment, in rejecting a worker's psychological injury claim.

Between September 2009 and June 2011, the Diamantina Shire Council receptionist kept records of interactions with staff, and her workers' comp claim listed nearly 50 stressors that contributed to her injury, including being directed to perform work outside of her job description, such as stocktaking and organising birthday cakes for functions.

One witness told the IRC that the workplace had an unhealthy "cliquiness" culture, where certain groups of people excluded others, and some employees made it "clear" they didn't like the worker.

Deputy President Deirdre Swan agreed that cliques existed in the workplace, and that "poor behaviour on the part of those in [the primary] clique contributed to making the workplace difficult... and occasionally intense".

But she also found the worker similarly behaved poorly in the workplace, and that employees avoided approaching her for fear of a confrontation that the worker would then record.

She found the worker's injury was caused by reasonable management action taken in a reasonable way.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

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Comment by Bernard Keith Althofer on February 13, 2015 at 11:40

The decisions identify the complexity of issues relating to workplace bullying.  Whilst individuals and organisations will have perceptions about what constitutes bullying, and that may be significantly different to how bullying has been identified in the FWA, considerable remains in creating a deeper understanding in relation to this topic.

It does appear that in some cases, some behaviours and communication occur in a context that a target perceives to be bullying, but an independent body does not see in the same light.

Reasonable management actions continue to be a bone of contention for some targets as some perceive they are being or have been unfairly targeted or subjected to 'special attention'.  It also seems to me that some organisations do try and encourage a bullying free workplace.  However, when one hears of workplace practices when the implementation process does not or has not involved communicating with managers and workers about what a new policy or procedure means, then some will perceive that the policy is unfair or unjust.

It also seems that as claims are made and decisions handed out, the behaviours that constitute workplace bullying are changing.  In some cases, it might be that the behaviours might still be considered to be bullying, but when put in different contexts or viewed by external decision makers, a decision is made that does not favour any of the parties involved.

It also seems that whilst there has been considerable discussion regarding the need for targets to document the behaviours or conduct being used against them, those involved also need to understand that in some cases, the information might be used against them.  Some targets will withdraw as they become isolated and increasingly frustrated with organisational responses.

Targets may find themselves on the brunt of investigations, responses within the workplace and ultimately decisions made when a complaint is made by them.

—A traumatised target is often physically unable to touch anything which reminds them of their experience and this can be months or years.

—Targets often  report a ‘strange feeling’ of sitting in front of large piles of evidence, knowing the ease with which they formerly handled paperwork, but feeling paralysed, over whelmed, unable to touch, read or process any of it.

A target may be unable to complete paperwork for workplace injury claims or construct a case for a Court, Commission or Tribunal within allowable timeframes. 

Unfortunately, for some targets, the existence of a workplace bullying policy provides some course of relief, but in reality, targets may find that there is a significant gap between what is supposed to happen, and what actually happens.  In addition, when Courts, Commissions or Tribunals hand down decisions or make findings and recommendations that appear to favour the organisation or the alleged bully, other targets retreat.  The situation then occurs when an organisation ends up only addressing the tip of the iceberg because the very people who need to report bullying, and gain organisational support, will not come forward.

Every case is different and accordingly, needs to be judged on the information and evidence presented.  In some cases, targets are so emotionally traumatised that they are not capable of presenting their case, unless they engage legal professionals.

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