The potential consequences of not adequately fulfilling duty of care were highlighted when the NSW Supreme Court awarded about $1 million in damages to a victim of schoolyard bullying. Although the case of Benjamin Cox was superficially of no direct relevance to employers, it represents just one of the various types of relationships in which a person or organisation has a legal obligation to avoid harm being caused to another person. The duty arises if it is reasonably foreseeable that the person will suffer harm as a consequence of a course of action or conduct.
The court heard that at the ages of five and six, Cox suffered repeatedly at the hands of the bully despite his mother’s efforts to enlist the school’s support to stop the victimisation. Cox developed severe anxiety and depression which continued throughout his schooling, and initiated legal proceedings against the Education Department when he was 18. The court found that he was unemployable and likely to suffer psychological injury for the rest of his life. The damages included loss of wages for life.
The bullying was not an isolated incident and it was foreseeable because it had been brought to the school’s attention repeatedly and expressly, the court found. Steps were needed to eradicate a known course of conduct.
Legal precedents show that bullying constitutes a risk to workplace safety. A security guard who was bullied repeatedly by his manager over four years was awarded $1.9 million in a recent case. Like Cox, the guard suffered serious psychological injuries, the court agreed he was unemployable and he received damages to compensate for loss of wages for life.
Clearly, employers who ignore workplace bullying risk failing in their duty of care to employees. They also risk triggering significant problems for their business. In addition to causing the victim stress and psychological injury, it can lead to absenteeism, increased staff turnover, low morale and poor work performance. Employers are well advised to learn to identify bullying behaviour and familiarise themselves with practical steps to eliminate it. In particular, managers and supervisors need to be able to react appropriately.
Workplace bullying takes many forms. It has been defined as repeated, unreasonable behaviour against an employee or group of employees that creates a risk to health and safety. Verbal abuse, insults, pranks, isolating an employee, intimidation and harassment are all included.
Bullying can be difficult to identify if it is well disguised. The victims can also conceal it if they feel it necessary to accept what their co-workers are handing out or fear the consequences of raising the issue.
Prudent employers incorporate the topic in their management and occupational health and safety plans. A good place to start is to have a bullying policy clearly stating that inappropriate behaviour will not be tolerated. The policy should give examples of unacceptable behaviour and describe the complaints procedures and types of disciplinary action which may be taken. The policy should be communicated to employees regularly.
Employers should also consult with employees about bullying. It can be discussed at health and safety committee meetings, toolbox meetings and in workforce surveys. Training programs should be developed for all employees, including managers and supervisors, and they should cover the policy and complaints procedures.
Making employees aware of what is unacceptable behaviour may involve training about the effects of bullying, both on individuals and the work environment. Employees should be taught how to deal with situations if they are bullied, and about the complaint mechanisms and counselling options available (for example, under an employee assistance program).
Managers and supervisors are likely to be well placed to identify and handle bullying incidents. Their training should include communication and complaint handling skills, and they should be educated in different management styles to ensure they themselves are not exercising hard management techniques which may constitute bullying.
Employees should be encouraged to raise concerns about behaviour which they know or suspect is inappropriate. If they feel comfortable doing so, they could approach the person directly about the behaviour. Alternatively, they should notify a manager or supervisor.
Having both informal and formal complaint processes is preferable. Which one is used will depend on the seriousness and facts of each matter. If a formal process is appropriate, the investigation should be carried out as soon as is reasonably practicable and all parties should be given opportunities to respond. The procedure should have provisions regarding confidentiality and victimisation.
Even if a complaint is not ignored, Cox’s case illustrates that there can be legal perils and hefty penalties if the response is inadequate or a complaint is too readily dismissed.
Tough on Bullying - To learn more about this author, visit John Stanton's Website.
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John Stanton
(Visit John's Website)
John has been involved in workplace
relations since 1985. He has represented a
wide range of industries including
pharmaceutical, building and construction,
health, local government, hospitality,
retail and manufacturing. He is an
experienced advocate and has represented
employers in relevant state and federal
tribunals. John has been a principal
advocate in several noteworthy industrial
cases. John has also advocated on behalf
of employers in various award matters,
affecting industries such as baking and
food manufacture, printing, pharmaceutical
and transport and distribution.
John also provides strategic advice to
businesses in relation to occupational
health and safety obligations. This
includes advice about compliance and
investigations into workplace accidents
and injuries. John has been involved in
representing the interests of employers
faced with prosecutions and has assisted
those employers in their dealings with the
prosecuting authority, and the
presentation of cases and defences.
John specialises in providing strategic
industrial and employment law advice and
representation to large companies and
major clients.
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