Myths And Misconceptions About Workplace Bullying Josh Bornstein


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How to deal with workplace bullying remains contentious. This speech by Josh Bornstein, examines the myths and misconceptions about workplace bullying.

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Myths And Misconceptions About Workplace Bullying Josh Bornstein

  1. 1. The Myths and Misconceptions about Workplace BullyingBullying, whether in the school yard or workplace, attracts its fair share of publicinterest and controversy. This can be partly explained by some of the spectacularlynasty cases that excite public attention. In the last week, a fierce twitter bullyingcampaign by what are described on twitter as “trolls” provoked an apparent suicideattempt on the part of the victim. She was bombarded by tweets abusing her andsuggesting ways for her to kill herself. She gave up and at 2am tweeted “you win”before attempting suicide.How to deal with workplace bullying also remains contentious. Although there isalmost a consensus that workplace bullying is not currently well managed, opinionsdivide sharply thereafter on what policy or legal response should be made. A FederalGovernment inquiry into the matter has recently concluded. It’s findings andrecommendations are not yet published.I intend to argue that in order to reduce the incidence of workplace bullying, a newpolicy and legislative approach is overdue. I will do so in the context of brieflyexamining some of the myths and misconceptions that this issue attracts.1. Workplace Bullying is IllegalThis myth that bullying in the workplace is illegal is the one I am most frequentlyconfronted with in my legal practise representing employees. Many employeesassume that bullying, per se, is unlawful and actionable. They are both surprised anddisappointed when I explain that the assumption is wrong. Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes 1
  2. 2. bullying. The lack of a law that explicitly deals with workplace bullying isanomalous for reasons I will deal with later.Bullying is alleged most commonly in personal injury cases, whetheremployees are seeking weekly payments, medical expenses or a commonlaw claim brought under the provisions of the Accident Compensation Act1985 (Vic). In order to be paid lump sum compensation under s 98C of theAccident Compensation Act 1985 (Vic) for a psychiatric injury, it is necessaryto demonstrate 30% whole person impairment – an extremely high thresholdto meet. This is compared to 5-10% whole person impairment for physicalinjuries. In order to sue at common law for a psychiatric injury, a bullyingvictim must demonstrate that they have suffered 30% whole personimpairment, or a serious injury in accordance with the tests set out in theAccident Compensation Act 1985 (Vic). It is an onerous obligation. The victimwill also need to establish negligence on the part of the employer, and theforseeability of sustaining the type of injury they are suffering.The bottom line is that in order to be able to sue to recover damages overworkplace bullying, an employee must be severely psychiatrically damaged.Employees who suffer serious psychiatric injury through workplace bullyingmay also have insurance benefits by virtue of their membership of asuperannuation fund. For example, many super funds provide automaticinsurance to their members for temporary or total and permanent disability.Workplace bullying may involve a breach of Occupational Health and Safety(”OHS”) legislation. Again, bullying is not expressly dealt with in OHSlegislation. Rather, an employer or individual employees may be prosecuted 2
  3. 3. for breaching the requirement to maintain a safe workplace. The victim cannot pursue or institute a prosecution. Brodie’s law is not a bullying law but a stalking law1. It has no application to the overwhelming majority of workplace bullying cases as it applies to extreme stalking behaviour. In my view, it is a “dead letter’, a law that may have been well intentioned but sits on the statute books unused. Bullying behaviour is often alleged in cases alleging unlawful discrimination under both federal and state statute. The relatively new s.351 of the Fair Work Act 2009 (Cth) (‘the Fair Work Act’) may be invoked in similar situations. That section prohibits a person from taking adverse action where such action is motivated by the sorts of attributes commonly protected by anti discrimination legislation. One can see from this brief survey of workplace laws that bullying and the law have some interaction. However, that interaction is haphazard, indirect and reactive.2. There is no definition of Workplace BullyingIt is often suggested that legislating to directly address and prohibit workplacebullying is impossible because there is no universally accepted definition ofworkplace bullying.It is also asserted that workplace bullying is impossible to define. It is “just sosubjective”, proclaim the critics and the white anters.1 See Crimes Act 1958 (Vic) s 21A 3
  4. 4. These claims are, to use an old fashioned technical legal expression, nonsense.Most OHS regulators use working definitions of bullying that are remarkably similar.In the Draft Code of Practice released on Preventing and Responding to WorkplaceBullying in 2011, Safe Work Australia defined the term to mean ‘repeated,unreasonable behaviour directed towards a worker or a group of workers that createsa risk to health and safety’2.The Code further defined the concept in two ways. Repeated behaviour is said torefer to the “persistent nature of the behaviour and can refer to a range of behavioursover time”3. Unreasonable behaviour is, described as “behaviour that a reasonableperson, having regard for the circumstances, would see as victimising, humiliating,undermining or threatening”4.Underlying the debate about whether workplace bullying can be defined andlegislation regulating it introduced is a genuine problem. Bullying can and doesmanifest itself in a remarkably diverse range of behaviours. The only limitation onthese behaviours is the parameters of the human imagination. It is not possible togive an authoritative and exhaustive list. In this way, it is a complex phenomenon.People may also disagree about whether certain behaviours constitute bullying.There can also be no real argument that the term is loosely bandied about and fromtime to time, misused. Employees who have received a poor performance review orwho undergo genuine performance management may wrongly cite workplacebullying.2 Safe Work Australia, Draft Code of Practice – Preventing and Responding to Workplace Bullying (September2011) Safe Work Australia, 4 <>.3 Ibid.4 Ibid. 4
  5. 5. Several observations may be made about this sort of debate.First, I ask have you ever known anyone to concede or admit that he or she is a bullyat work. Invariably, bullying is denied by the alleged perpetrator. Secondly, Irhetorically ask each and every one of you: (a) have you witnessed or experienced bullying in the workplace?; and (b) have you experienced or witnessed bullying allegations that lack merit?Most people I speak to answer both these questions in the affirmative. I do too.Why then is it so difficult to imagine a judge or tribunal member making the same sortof judgments based on evidence presented in a particular case? Is it impossible todecide what is “repeated unreasonable behaviour” in a particular context?These are the sorts of judgments that our courts and tribunals exercise every day.Unfair dismissal laws have existed in this country for almost 40 years. Despite themischievous and misleading rhetoric about their effect on job creation, the reality isthat the sky is still roughly in the same trajectory that it was when these laws wereintroduced. Judges and tribunal members have been making decisions based onwhat is fair in the circumstances of each case for all of that time.That people lack a clear understanding or definition of a particular problem is notexactly new either. Again my colleagues and I routinely consult employees whocomplain that they have been “defamed” or subjected to “discrimination” when oncloser analysis that is simply not the case. Their understanding of those concepts isfrequently wrong. 5
  6. 6. There is no doubt that much more can and should be done to educate employers andemployees about the nature of bullying. A shared understanding is in the interests ofall of us. Indeed, it is in the interests of those wrongly accused of bullying for there tobe a better understanding of what is and what is not workplace bullying.3. Workplace Bullying is a misguided reference to a Personality ConflictIt has become fashionable by some commentators and OHS professionals to claimthat all too often, bullying claims are unfounded and simply a misguided referenceto a personality conflict or relationship breakdown. When I hear such claims, Iimagine a mythical family court judge lamenting that if it wasn’t for personalityconflicts or relationship breakdown, there would be no need for divorce.This is a myth and/or misconception generated principally by OHS regulators andbottom-feeding IR consultants seeking to drum up work.It is often invoked in response to criticisms about the lack of effective policingundertaken by such regulators. We all know that there are large numbers of bullyingcomplaints each year. A fraction are investigated by the regulators. A fraction of thatfraction are upheld. The vast majority are “not substantiated”. An even smallerfraction result in a prosecution.Underlying these trends are genuine difficulties experienced by OHS investigators inbullying cases. To put it crudely, there is no “blood on the floor”. Mental healthdamage is often invisible to the eye. Bullying behaviours are often subtle orMachiavellian and an accomplished bully can often construct a defence of plausibledeniability.As the Productivity Commission has observed: 6
  7. 7. "OHS inspectors generally find psychosocial issues in the workplace harder to address than physical hazards. OHS inspectors responded in a survey that they found it much harder to get employers, particularly small manufacturing firms, to deal with psychosocial factors. They also found cases of bullying to be much more difficult to resolve. Inspectors described bullying cases as being emotive and involving a range of different individual interpretations of the events, making it more difficult to substantiate a claim. As a result of these difficulties, some inspectors reported that they were reluctant to handle psychosocial complaints (Johnstone, Quinlan and McNamara 2008)"5.Personality conflicts are inevitable in any workplace. Workplace bullying is notinevitable in the workplace. A personality conflict can develop into workplace bullyingdepending on the behaviour of the protagonists. At the same time, personalityconflicts can coexist with a professional and civilised work environment.Personality conflict or relationship breakdown are at the heart of almost all workplacebullying cases.4. Workplace Bullying is a safety issueOne of the keys to sensible legislative and policy reform on workplace bullying is toremove it from its current legal and cultural designation as an occupational healthand safety issue.There are 2 bases for my view. The first is a matter of principle; the other driven bymore pragmatic considerations.5 Productivity Commission 2010, Performance Benchmarking of Australian BusinessRegulation: Occupational Health & Safety, Research Report, Canberra, 299 7
  8. 8. First and foremost, workplace bullying is illegitimate and destructive behaviour. It isillegitimate whether an injury is caused or threatened. It raises questions of how wetreat each other at work. A workplace free of bullying requires a standard ofbehaviour, of civilised discourse and interaction.Workplace bullying is illegitimate in much the same way that unlawful discriminationis. Both can cause a compromised health and safety environment. Both can causecatastrophic damage to health but it is only bullying that remains pigeon-holed in theoccupational health and safety and personal injury sub-culture.The pragmatic reason is this: confining workplace bullying to the realms of OHShasn’t worked and it won’t work.For far too long, we have accepted a system which entrusts the regulation andpolicing of this issue to state based regulators. Workplace regulators and OHSprofessionals are often overwhelmed by the volume of workplace bullying complaints.They quickly become jaded by workplace bullying. They suffer “compassion fatigue”.It is too easy to not investigate or reject a bullying complaint as based on, e.g. apersonality conflict.In Victoria, we have WorkSafe. Like all other state funded regulators, it is simply notresourced sufficiently to manage the volume of workplace complaints it receives. Itinvestigates a tiny fraction of complaints6.Although it achieved a successful high profile prosecution in the Brodie Panlockcase, the employer and the bullies were fined 4 years after Ms Panlock committedsuicide. Even in that case, I understand that there may have been a reluctance withinthe agency to pursue that matter.We have accepted a second rate system for too long.6 Rachel Wells, ‘Most workplace bullying claims fall short’, The Age (Online) July 24 2011 <> 8
  9. 9. Those who have represented victims of unlawful workplace discrimination will be alltoo aware that it too has a corrosive impact on the mental health of employees whoexperience it. Quite sensibly, we do not require proof of a risk to health or safety forthe legal system to provide redress and protection under anti discrimination law.I advocate law reform that allows victims of workplace bullying to take a complaint toa tribunal or court well before the situation has escalated to the point of irreversibledamage to an employee’s health. We need a system that allows early interventionthat maximises the chances of health and preserving the employment relationship.I suggest that consideration be given to amending the Fair Work Act to allow this tooccur. The Fair Work Act has national reach. A civil remedy provision proscribingbullying could be introduced. An affected person could bring a case. Either Fair WorkAustralia, the Federal Court or Federal Magistrates Court could have a role. Broadremedial powers would be appropriate.Regulators could have a complementary role. For example, the Fair WorkOmbudsman currently can initiate proceedings in respect of unlawful workplacediscrimination as can employee victims. I see no reason why a similar approachcould not be taken in the case of workplace bullying.OHS laws impose obligations on employers to provide employees with a safeworkplace so far is reasonably practicable. When bullying is sufficiently serious, acomplaint can be made alleging the employer has failed in its obligations. Once acomplaint is made, an investigation may take place. If the outcome of thatinvestigation identifies a breach of OHS laws, a prosecution of the employer andrelevant employees may follow. This process can take several years. The process ofinvestigating bullying complaints is slow and ineffective as it is conducted by 9
  10. 10. workplace inspectors who are also monitoring the compliance of OHS legislationmore widely. Additionally while there are implications for the employer if found to have breached OHS laws, there are no legal remedies for the victim of the workplace bullying which affects the efficacy of pursuing workplace bullying under OHS legislation. In addition by the time the OHS process unfolds, the damage to a bullying victim has been done, often irreparably.5. Employers should address Workplace Bullying by codes of conduct andpoliciesThe era of the workplace policy or code of conduct being the key to managingworkplace culture is well and truly over.David Jones had a state of the art policy on sexual harassment when it faced seriousallegations about the conduct of its then CEO in 2011. Indeed, in most cases ofharassment and bullying that I deal with there is a terrific workplace policy prohibitingthe conduct my client alleges.It is one thing for employers to purchase a vanilla workplace policy off the internet orfrom law firms or consultants. It’s altogether another to actually manage workplaceculture. The gulf between culture and policy can and is often significant. Bridging thatgulf requires sustained hard work and enlightened management.There are several other factors that militate against reliance on workplace policy andcodes of conduct. They relate to compliance.First, many employers now have their workplace policies “legalled” so that the policycan’t be enforced by employees. It is standard for such policies to be expressed toapply to the employee but at the same time to state that they do not form part of the 10
  11. 11. employee’s contract of employment. Such provisions have been common in theaftermath of Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC120, in which the Federal Court found that a policy prohibiting workplace bullying wasan enforceable term of the employee’s employment contract and awarded substantialdamages for breach.Secondly, in larger workplaces, it is left to human resources managers to effectivelypolice workplace policies.What happens if the alleged bully is the boss? Self preservation for the beleagueredhuman resources manager dictates the answer here. Very little. Or worse, thecomplainant is removed or sacked.And for those who suggest that this must occur rarely, I want you to reflect on someof the “strong personalities” who have or continue to lead companies, schools,political parties, sporting organisations, religious institutions and so on. Is it possiblethat some of them are or were bullies?There is a fundamental ambivalence about bullying in our society which deserves afar more profound analysis than I can provide today.When we are confronted with strong examples of bullying, we tend to abhor it. At thesame time, we reward many of those who are particularly adept at perpetrating it.The kid in the playground with all the tonka toys and kicking sand in other kids’ facesmay grow up to be the CEO or leader of a church or political party.6. Workplace Bullying should be criminalisedFollowing the tragic suicide of Brodie Panlock in 2010, new provisions wereintroduced into the Crimes Act 1958 (Vic) to try and incorporate serious bullying 11
  12. 12. behaviour into the offence of stalking. The Crimes Amendment (Bullying) Act 2011(Vic) was introduced to expand the definition and scope of stalking under the CrimesAct 1958 (Vic).The definition of stalking under s 21A was expanded to include among other thingsmaking threats to the victim, using abusive or offensive words to or in the presence ofthe victim, performing abusive or offensive acts in the presence of the victim anddirecting abusive or offensive acts towards the victim7. A course of conduct which theoffender ought to have understood would be likely to cause the victim harm includingself-harm was also included in the definition8.The maximum penalty for stalking is 10 years imprisonment and therefore provides apunishment to the perpetrator of bullying if found guilty, although not a direct remedyto the victim.Similar amendments were also added to the Stalking Intervention Orders Act 2008(Vic)9 and the Personal Safety Intervention Orders Act 2010 (Vic)10, so that the threeActs are consistent and victims of serious bullying can make applications for theissue of intervention orders.In recent response to the Federal Government Review into Workplace Bullying, theACTU has suggested that it would support the criminalisation of workplace bullying11.Others have called for Brodie’s law to become a national law.I couldn’t disagree more.7 See Crimes Act 1958 (Vic) s 21A8 Crimes Act 1958 (Vic) s 21A (3)9 See Stalking Intervention Orders Act 2008 (Vic) s 410 See Personal Safety Intervention Orders Act 2010 (Vic) s 1011 Australian Council of Trade Unions, (ACTU) Submission To the House Standing Committee on Education &Employment, Inquiry into Workplace Bullying, 4 July 2012, 8 12
  13. 13. Criminal law should only intrude into the workplace in extreme situations. Mostbullying cases are not criminal matters.Those bullying cases which involve actual or threatened assault do not require newcriminal laws. Existing provisions of the Crimes Act 1958 (Vic) will suffice.While Brodie’s law has been symbolically important, at a practical level it has beennext to useless. It does not apply to 95% of bullying situations. Even if it wasamended to change that, it is deeply flawed. To give but one illustration of its flaws,imagine you are an employer and an employee turns up to work on Mondaybrandishing an intervention order prohibiting another employee from going within 100metres of him or her.Just as state based OHS bureaucracies are ill-equipped to manage bullyingcompliance, our police forces have scarce resources and will not deploy them to dealwith workplace bullying.7. The Way ForwardThe Federal Government is currently conducting a review into bullying in theworkplace and the terms of reference are directly addressed at “gaps that should beaddressed in the interests of enhancing protection against and providing an earlyresponse to workplace bullying, including through appropriate complaintmechanisms”12.Before I am criticised for advocating the expansion of the “nanny state”, can I remindyou of some of the protections currently enjoyed by employees under federal law.Employees are protected from:12 Commonwealth of Australia, Inquiry into Workplace Bullying – Terms of Reference, Parliament of Australia <> 13
  14. 14. (a) being misled about an aspect of workplace bargaining; (b) being exposed to undue influence or pressure to accept a guarantee of annual earnings; (c) being subjected to a false or misleading representation about workplace rights; and (d) punitive retaliation for making a complaint to the employer about an aspect of their employment under the Fair Work Act.Indeed, an employee who complains that another employee is being subjected tobullying is protected from adverse action. The bullying victim has no such protection.The political climate is ripe for a push for significant law reform in this area. It isevident that the current legal system does little to afford victims of workplace bullyingwith effective options to address the situation.In recent months, we have heard a considerable amount of rhetoric and commentaryabout the supposed drain on productivity attributed to Australia’s workplace relationssystem. Virtually none of this commentary is evidence based. It grossly over-simplifies the nature of productivity and the constituent parts that are involved inaffecting our productivity performance.In the case of workplace bullying, the science is in. The Productivity Commissionreported on the issue in 2010. Its report confirmed that workplace bullying is a multibillion dollar productivity-sapping industry. Employer organisations and CEO’s are farmore comfortable in advocating the removal of penalty rates or the benefits ofindividual contracts. Why? 14
  15. 15. An investment in an educational campaign about workplace bullying, together withthe legal reform, I suggest would reap a huge dividend by saving millions in lostproductivity, healthcare costs and social welfare payments. It would enhancemanagerial skills and improve the quality of life of employees.I look forward to a modern effective approach to workplace bullying in this country.Bring it on. 15