Employer: Bullying at Work
Can you be accused of bullying your employee because you give them more work, or submit them to an impromptu performance review?
First of all we will look at what workplace bullying actually is, the types of acts that constitute bullying, and what the employers’ rights are in regards to work demands.
What is workplace bullying?
A worker is bullied at work if:
a person or group of people repeatedly act unreasonably towards them or a group of workers, and
the behaviour creates a risk to health and safety.
Unreasonable behaviour includes victimising, humiliating, intimidating or threatening the worker. Examples of bullying include:
teasing or practical jokes
pressuring a worker to behave inappropriately
excluding a worker from work-related events
aggressive or intimidating conduct
belittling or humiliating comments
spreading malicious rumours
displaying offensive material
unreasonable work demands/expectations - including too much or too little work, or work below or beyond a worker's skill level
However, in order for the actions to be bullying the behaviour must be repeated and unreasonable, and must create a risk to health and safety.
A worker, or group of workers, who reasonably believe they are being bullied at work may make an application to the Fair Work Commission for an order to prevent the bullying. Whether behaviour is unreasonable or not can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.
Reasonable work demands
Reasonable management action may include:
performance management processes
disciplinary action for misconduct
informing a worker about unsatisfactory work performance or inappropriate work behaviour
asking a worker to perform reasonable duties in keeping with their job
maintaining reasonable workplace goals and standards.
However, these actions must be conducted in a reasonable manner, and if they are not they could still constitute bullying.
Unreasonable work demands?
The Fair Work Commission has been called upon to decide what “unreasonable work demands” means in practical circumstances. In its most recent case, an employee Mr. Tao Sun raised the allegation of bullying against his employer CITIC Pacific Mining Management Pty Ltd, which was heard and rejected by the Commission.
Mr. Tao Sun, who was taken to hospital after collapsing at work in December 2013, had claimed that (1) that the general manager and his supervisor had delegated a project to him that was beyond his job description, and (2) his performance should only be reviewed within the yearly review period and he was submitted to reviews outside of that period. As part of his evidence Mr. Sun included secretly obtained emails and voice recordings which he submitted to the Commission.
The Commission found that there were no grounds to the first allegation. The employee’s conditions of employment in his employment contract referred to the variation and flexibility of duties, which applied in this case. The Commissioner held that “it is not sustainable for employees to say that a task is beyond their skill level and, if the employer does not agree, allege that it is workplace bullying.” The second complaint was not considered to be bullying conduct, but rather reasonable management action. It was reasonable management practice for managers and supervisors continually to give fair and constructive feedback on a worker’s performance. The Commissioner took the opportunity to remind workers alleging bullying on the part of their employers that they are still obliged to undertake their duties and responsibilities. This includes acting in compliance with workplace policies and procedures – accessing emails without permission is unacceptable.
The decision makes it clear that bullying does not include reasonable management action carried out in a reasonable manner. A manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out, without it constituting bullying.
Preventing bullying at work
Employers have a duty to address issues of bullying at work within the workplace. If you do not already have them, you should ensure that processes are in place in your workplace to deal with issues of bullying, such as an anti-bullying policy or a grievance procedure. Your workers should be encouraged to raise any issues with their supervisor, health and safety representative or human resources department. In fact, the Fair Work Commission will expect these internal processes to have been pursued before any bullying claim is brought before it.
However, all workers should be reminded that even if they perceive that they are being bullied at work, it does not entitle them to override workplace policies. In Tao Sun’s case it did not entitle him to secretly access private emails and to record meetings surreptitiously.
What should I do next?
Our lawyers at You Legal can provide employers with information on how to resolve issues of bullying at work. We can help you develop human resources policies to manage your staff and to resolve disputes relating to bullying or other personnel issues.
* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.