- Workplace bullying has come under recent scrutiny in Asia Pacific with the Japanese Government issuing a report which includes guidance for employers on how to eliminate this type of behaviour at work.
- A parliamentary inquiry into bullying at work has been launched in Australia which may lead to new national laws in this area.
- A recent Australian Federal Court case also highlights the importance of employers putting in place adequate anti-bullying and harassment policies and training programs.
Complaints of workplace bullying have risen in Japan from approximately 6,600 in 2002 to 39,400 in 2010 according to the ‘Report by the Working Group Roundtable regarding Workplace Bullying and Harassment’ issued by the Japanese Ministry of Health, Labour and Welfare earlier this year (Japan Report).
The Japan Report goes on to define what types of behaviour amount to workplace bullying or ‘power harassment’ and how employers can go about preventing this type of behaviour.
In Australia, the government estimates that workplace bullying costs the national economy between A$6 and A$36 billion annually. A parliamentary inquiry has been set up to examine the extent of the problem with introduction of new national workplace bullying laws being a possible outcome.
The Japan Report describes ‘power harassment’ as actions against a victim by a co-worker using their position of superiority or relationship with the victim which lead to mental or physical damage or worsening of the work environment, and which are actions outside of the appropriate ambit of day-to-day work. Examples listed in the report include:
- physical and mental abuse,
- isolation or neglect,
- unreasonable or insufficient work demands,
- invasion of privacy.
For prevention purposes the Report recommends that employers should take a number of steps, including:
- sending out a ‘message from the top’ making senior management’s express prohibition of bullying at work clear to all,
- establishing a point of contact (external and internal) for victims and liaising with external professional counsellors,
- incorporating provisions on workplace bullying and harassment into Work Rules and establishing preventive policies,
- setting up appropriate training sessions, particularly where incidents have occurred to prevent any reoccurrence,
- monitoring the status quo, obtaining employee feedback through questionnaires and communicating policies and training provision to employees on an ongoing basis.
The Japan Report is not new law but it acknowledges the legislature’s position on ‘power harassment’. Amendments to Japanese health and safety laws which are expected later this year will also expressly provide for the protection of employee’s mental health which could extend potential claims to victims of bullying at work.
On 31 May 2012 the Minister for Employment and Workplace Relations launched a parliamentary inquiry and report on workplace bullying. The terms of reference cover all aspects of bullying including ‘…whether there are regulatory, administrative or cross-jurisdictional and international legal and policy gaps that should be addressed in the interests of enhancing protection...against…workplace bullying.’
The Inquiry is due to report back to government by 30 November 2012. Press reports suggest that it may trigger new national laws on bullying to supplement existing protection under occupational health and safety laws (or in severe cases, criminal laws). It will also be interesting to note what may be uncovered in relation to ‘international’ legal or policy gaps. It remains to be seen whether this could become another area of employment law where there is uncertainty as to the territorial limits of the legislation, or whether this will be clearly set out.
Implications for employers
Faced with a possible increase in regulation, employers may wish to have appropriate global policies in place to help prevent bullying at work and, at the same time, protect themselves against potential liabilities for failure to take reasonable care of their workers.
The benefit of establishing appropriate policy and regular training of staff and managers in workplace bullying was clearly demonstrated in the recent Australian Federal case of Brown v Maurice Blackburn Cashman.
In Brown the court held that the employer had not breached its duty of care to an employee who claimed that she had suffered psychiatric injury due to bullying at work. A key factor in the court’s findings was that the employer had received sufficient training to deal with bullying complaints.1