Bullying in the Workplace and Accessorial Liability
Bullying in the workplace is verbal, physical, social or psychological abuse (usually) by an employer (or manager), another person or group of people (other employees) at work. It can often be associated with a general toxic work culture. Often it is a symptom of poor, unethical or negligent leadership. It poses a significant, but avoidable risk.
Under the Fair Work Act, a person who has been bullied at work may apply to the Fair Work Commission for an Order to stop the bullying.
When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
Bullying at work can take many forms subtle and overt, and can include:
- Repeated hurtful remarks or attacks, or making fun of your work or you as a person (including your family, sex, sexuality, gender identity, race or culture, education or economic background);
- sexual harassment, particularly stuff like unwelcome touching and sexually explicit comments and requests that make you uncomfortable;
- excluding you or stopping you from working with people or taking part in activities that relates to your work;
- playing mind games, ganging up on you, or other types of psychological harassment;
- intimidation (making you feel less important and undervalued);
- giving you pointless tasks that have nothing to do with your job;
- giving you impossible jobs that can’t be done in the given time or with the resources provided;
- deliberately changing your work hours or schedule to make it difficult for you;
- deliberately holding back information you need for getting your work done properly;
- violence or threats of violence in the workplace; and
- initiation or hazing – where you are made to do humiliating or inappropriate things in order to be accepted as part of the team.
The visible signs and effect of bullying in the workplace can include poor performances, stress leave, losing good staff, claims and open conflict.
The Effect of bullying in the workplace
For the individual being bullied, it can mean:
- being less active or successful;
- being less confident in their work;
- feeling scared, stressed, anxious or depressed;
- having their life outside of work affected, e.g. study, relationships;
- wanting to stay away from work;
- feel like they can’t trust their employer or the people who they work with;
- lacking confidence and happiness about themselves and their work; and
- have physical signs of stress like headaches, backaches, sleep problems.
Liability of Employers and accessorial liability for workplace bullying
For the organisation, bullying conduct in the workplace can mean:
- loss of productivity;
- loss of profitability; and
- loss of corporate reputation as a good and safe place to work.
The cost of Bullying in the workplace
It can also mean exposure to significant claims including against individuals who are involved in workplace bullying behaviour or conduct, particularly where the worker suffers mental stress and injury from such bullying conduct that result in complaints which are not properly dealt with and where there is adverse action taken against the employee, and conduct which infringes Work Health and Safety legislation.
For instance, a worker has a workplace right to make a complaint about their workplace rights, which includes a right to work in a workplace safe from bullying and harassment. A worker who makes such a complaint, and is then subjected to bullying or adverse action by way of injury to the employee in their employment, has a right to bring an action under the FWA.
Recently, the measure of damages for such bullying claims has been significant:
The Queensland Supreme Court in Robinson v State of Queensland  QSC 165 awarded $1,703,530 in damages against an employer, whose Chief Executive Officer’s “unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard” of the plaintiff employee resulted in serious psychiatric injury.
The employer was found vicariously liable for the CEO’s actions and to have breached its own duty of care. Justice Henry found that the CEO’s conduct constituted unlawful workplace bullying and harassment, and a breach of the employer’s own Workplace Harassment Human Resources Policy, which required managers to continually model appropriate and ethical behaviour.
His Honour stated:
“In an era when the potentially grave psychological harm done by workplace harassment and bullying is well known, unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of an employee by a CEO was conduct collectively raising a foreseeable and not insignificant risk of psychiatric injury”.
The bullying conduct of the CEO towards a District Director of Nursing included:
- unjustified, loud and aggressive disciplining and belittling of her in public and in front of other staff on multiple occasions;
- failing to inform her of allegations against her and failing to provide those allegations in writing despite repeated requests;
- isolating her on many occasions, including by failing to address her reasonable queries;
- failing to meet her for requested private discussions;
- circumventing her in communications with staff;
- humiliating her by making substantive decisions about her employment; and
- communicating these decisions to staff without first consulting or advising her.
This mistreatment caused the plaintiff to develop a chronic adjustment disorder. The plaintiff never returned to work and subsequently entered into compulsory retirement due to her injury.
Accessorial Liability for bullying in the workplace
Further, any persons “involved” in any such conduct may be personally liable: s550 FWA provides that a person is involved in a contravention of a civil remedy provision if, and only if, the person:
- has aided, abetted, counselled or procured the contravention; or
- has induced the contravention, whether by threats or promises or otherwise; or
- has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
- has conspired with others to effect the contravention.
“Wilful blindness” to bullying conduct where it constitutes a breach of the bullying provision of the FWA or the Work Health and Safety or other protective legislation will clearly be rejected as a defence to claims of this nature.
In practice, this means that leadership that ignores or fails to act upon bullying conduct will expose not only the organisation, but themselves personally to liability for significant damages.
The decision of Robinson also illustrates the importance of ensuring that employers not only have appropriate policies and procedures in place to prohibit workplace bullying, including psychological bullying, but that such policies are understood, and reinforced.
Further, it illustrates how workplace leadership (directors and managers) have a critical role to play and must convey the message that bullying behaviour is unacceptable and will not be tolerated under any circumstances. The organisation is most at risk where the actual leadership is in fact the perpetrator or facilitator of such bullying conduct or is wilfully blind to or encouraging of such behaviour.
Most importantly, where the alleged perpetrator is a senior executive or manager, the employer must ensure that its procedures provide for a prompt and impartial intervention and investigation and for appropriate disciplinary action to be taken if the allegations are substantiated.