Workplace bullying: Understanding the legal labyrinth

Recent allegations about workplace bullying and workplace conduct in public authorities in Western Australia have thrown the legal context of workplace behaviour into sharp relief.

Workplace “bullying”, while having a specific meaning in legislation, has become somewhat of a catchall phrase for a range of workplace behaviour spanning several legal contexts.

Historically, bullying has been understood as an employment issue, often in the context of discrimination or harassment.  From time to time, bullying has crossed into the workplace health and safety jurisdiction, but in most cases, this happens when the “bullying” results in some sort of physical outcome.  For example, the Café Vamp case involved prosecutions under Victorian health and safety legislation, with significant fines for the employer and several individuals following horrific workplace bullying leading to a young worker suiciding.

In another case, a New South Wales company and two of its directors were prosecuted when a 16-year-old worker was physically assaulted in a workplace “hazing” (Inspector Gregory Maddaford v M A Coleman Joinery (NSW) Pty Ltd).  It will be interesting to see what regulatory or legal approaches authorities will take in relation to the recent allegations of hazing at university colleges.

In an article published by ABC News online on 28 February 2018, the city of Perth was allegedly accused by staff of creating an “unsafe workplace” because of “sustained and persistent poor conduct” by elected members.  The article goes on to explain successive CEOs had taken leave, variously described as “stress” and “personal” leave, allegedly caused by breaches of an employment contract in one case and an “unsafe workplace environment” another.

Another article posted by ABC News Online reports that WorkSafe Western Australia is investigating the Southern Ports Authority over allegations of a “toxic culture of workplace bullying” in the Authority.

This last example shows a shift in attitude by the regulator, away from physical harm to investigating allegations of bullying in their own right.

We have also seen examples where an employer’s response to concerns about behaviour in the workplace can result in psychological harm and consequent legal proceedings.  For example, in Campbell v Woolworths [2017] NSWWCC 213, an employer was liable for an employee’s major depressive disorder following a workplace investigation.

Whatever the headline descriptor might be, bullying, harassment, discrimination and so on, it is apparent “psychological harm” issues arising from this behaviour cut across a raft of legal frameworks including unfair dismissal and general protections claims under the Fair Work Act, harassment and discrimination claims under various state and Commonwealth legislation, workers compensation claims, workplace health and safety legislation and in some cases the criminal law, for offences such as assault.  I am sure there are others.

Workplace behaviour and the potential harm it can cause is a significant workplace risk.  Employers need to make sure they have adequate processes to minimise the risk of inappropriate behaviours and respond to them if they occur.  The content of those processes will vary from organisation to organisation, but I think we can say with some confidence, just relying on Employee Assistance Programs will not be enough.

For the health and safety industry the whole concept of workplace behaviours and psychological harm is a fundamental challenge to the entire structure of how we do business.  At the most basic level, and I have written about this before, there is an arguable case that current practice of health and safety contributes to psychological harm in the workplace.

But, even if you are not prepared to go that far, I think it is strongly arguable that health and safety legislation, regulators, and health and safety practitioners are not well-equipped to deal with the complex environment of psychological harm.  Health and safety legislation in Australia, despite the deference we might have to the concept of “health”, is fundamentally concerned with fatalities and significant physical injuries in blue-collar work – mining, construction, agriculture, oil and gas and so on.  Almost exclusively, inspectors working for health and safety regulators come from a technical, operational or engineering background – at least the ones who appear on site.  The health and safety industry is built on an engineering paradigm, very well-equipped to deal with heavy industry, but poorly disposed to the management of people and their psychological well-being.

This whole discussion, in my view, is made more interesting because Safe Work Australia is currently asking for comments as part of their review of the model WHS laws.  Unlike the lost opportunity that was the introduction of WHS laws in the first place, let’s hope this review can look beyond the narrow, 1970s approach to workplace health and safety and try to incorporate all (or some) of the complexities of a modern working environment.  Further, let’s hope the review looks beyond the narrow self-interest of the health and safety industry to incorporate the whole spectrum of concerns about workplace “well-being”, including compensation, discrimination, harassment, employment relationships and so on.

In a modern, sophisticated society, personal well-being at work should not be an elaborate version of the Monty Hall Problem, nor left to the whim of regulators and their choice of which cases to pursue.  Any serious conversation about WHS legislation would include, at a minimum, alignment with workers compensation legislation but should understand and incorporate – or at least align to – employment and discrimination legislation.