Workplace bullying remains a matter of concern for organisations trying to comply with their obligations under workplace health and safety laws, as well as discrimination and workers compensation laws. This article looks at some of the key issues employers need to know.

The effects of bullying can be far-reaching, with both direct and indirect implications for business. These range from loss of morale to workplace disruptions and, in some cases, legal action. Given the broad perception of what amounts to bullying by many employees, how can businesses ensure that they comply with the law and reduce illegitimate claims at the same time?

What is workplace bullying?

Workplace bullying is repeated (usually), unreasonable behaviour directed towards an employee or a group of employees, that creates a risk to health and safety. Bullying can be either direct or indirect, intentional or unintentional behaviour that a reasonable person would see as victimising, humiliating, undermining or threatening.

Both employers and employees have an obligation under work health and safety laws to prevent, to the extent reasonably practicable, bullying in the workplace.

What isn’t bullying?

It’s important to recognise that not all situations that cause employees anxiety or discomfort will be characterised as bullying. The law recognises that differences of opinion, or personality clashes, as well as reasonable management action do not amount to bullying.

Specifically, managers and supervisors have a right to manage the work and performance of their employees and take reasonable management action to maintain productivity. Section 11A of the Workers Compensation Act 1987 (NSW) recognises this, and specifically provides an exception to payment of workers compensation for psychological injury, where the injury “was wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers…” (similar provisions exist in other state and territory workers compensation legislation).

Reducing illegitimate claims

A functional and flexible workplace bullying policy, drafted in consultation with employees, is one of the key measures in not only reducing bullying, but in providing a measure for assessing illegitimate claims. Typically, such a policy will cover standards of acceptable and unacceptable behaviour, sanctions for unacceptable behaviour, and will provide information on complaints handling procedures. All employees should be made aware of the existence of such policies and management should be provided with training to recognise and deal with incidents of bullying in the workplace. Additionally, a highly effective and practical measure for reducing illegitimate claims is the effective training of management in dealing with employee performance.

When systematic performance management becomes a common part of management’s actions, employees become accustomed to the process without undue fear of the purpose and effect of feedback on their performance.

Finally, while it is important that complaints are adequately handled in accordance with workplace policies, addressing claims of workplace bullying does not always need to be a lengthy, costly and formal process. Approaching allegations of bullying informally, without the need for a formal investigation, can be an effective way of obtaining information to decide whether an allegation of bullying is legitimate, or further investigation is required. Requiring every bullying claim to be formally investigated delays action against actual bullies and potentially makes managers fearful of doing their job.