What is Bullying?
Bullying is defined as repeated and unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety. Bullying usually involves an imbalance of power between the perpetrator and the victim; it can occur upwards (e.g. staff member to manager), downwards (e.g. manager to staff member) or across (e.g. staff member to staff member)*.
Bullying behaviour may be psychological, physical, or indirect (e.g. exclusion), including:
– Aggressive or intimidating conduct
– Excluding or isolating employees
– Psychological harassment
– Practical jokes
– Unreasonable work expectations (assigning too much or too little work)
– Undermining work performance
What is Harassment?
Harassment is defined as behaviour that intimidates, offends or humiliates a person. Harassment can be inferred from a single incident, and is typically based on gender, sexual orientation, religion, age, race, or ethnicity*.
Harassment can involve physical and/or verbal behaviours that work to undermine an individual’s self-worth, including:
– Telling insulting jokes about particular social groups
– Sending explicit or sexually suggestive emails/texts
– Displaying racially offensive or pornographic material
– Making derogatory comments or taunts
– Asking intrusive questions about someone’s personal life
– Offensive jokes or gestures
– Ignoring, isolating or segregating a person or group
– Initiation ceremonies that involve unwelcome behaviour
The most common form of harassment is sexual harassment. Sexual harassment is defined under the Sex Discrimination Act (1984) as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed**.
What is the difference?
Evidently, there is some overlap between bullying and harassment, and often the two are used interchangeably to describe any intimidating, unreasonable and/or offensive behaviour directed toward an individual or group of individuals.
The main difference between bullying and harassment is that incidents of unreasonable behaviour must be repeated to be classified as bullying, whilst harassment can be inferred from a single incident*. Hence, some incidents of bullying behaviour can be considered harassment, and when harassment is repeated, this can be considered bullying.
Bullying and harassment also have similar consequences for work and health. Research conducted by Safe Work Australia found that bullying is associated with lower job satisfaction and engagement, higher intention to leave, and higher levels of emotional exhaustion, psychological distress and depression. The consequences of harassment mirrored those of bullying; being sworn at, humiliated in front of others, and gender discrimination were the most hazardous in terms of their consequences for job satisfaction and wellbeing.
All employees have the right to a workplace free from discrimination and harassment, and employers have a responsibility to ensure that these rights are met.
Anti-discrimination legislation renders discrimination unlawful, hence employers may be legally responsible for workplace discrimination/harassment if they do not adequately prevent and/or respond to incidents of harassment**. Examples of such legislation include:
- NSW Anti-discrimination Act (1977) – prohibits racial, sexual and other types of discrimination in a variety of domains, including employment.
- Sex Discrimination Act (1984) – prohibits unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.
- Racial Discrimination Act (1975) – prohibits behaviour that offends, insults or humiliates a person because of their race, colour or national/ethnic origin.
- Disability Discrimination Act (1992) – prohibits harassment in the workplace based on a disability.
Similarly, Bullying is prohibited by the Fair Work Act (2009) and may also be unlawful under anti-discrimination laws where bullying is related to protected characteristics such as age, sex, race or disability^. Further, in accordance with the Work Health and Safety Act (2011), employers have an obligation to prevent risks to their employees’ health and safety caused by workplace bullying. Employers can therefore be vicariously liable for bullying perpetrated by their employees, due to negligence in failing to meet their duty of care to prevent workplace bullying.
Examples in Case Law
A company breached the Anti-Discrimination Act when it failed to effectively stop racial discrimination against an employee.
The staff member, who was Muslim, was subject to discriminatory slurs by fellow staff members (including his manager and a union delegate). When reported to the Anti-Discrimination Board, the managers denied the harassment, but the union delegate eventually admitted that he was aware of the harassment and that racial slurs were common in the workplace.
The Tribunal found that the name-calling had occurred over several months and caused the worker a great deal of distress, humiliation and embarrassment. This conduct had breached the NSW Anti-Discrimination Act on racial discrimination, specifically on ethno-religious grounds. The Tribunal ordered $25,000 in damages plus court costs.
An employee received compensation for psychiatric injury resulting from persistent bullying following her promotion to a management position. She was awarded $339,722 in damages.
The employee did not receive any management training prior to her promotion, and other employees responded with bitterness and resentment about the removal of the previous team leader. The employee endured increasingly hostile behaviour, including spreading rumours, disobeying requests, making offensive and vindictive comments, and a failure to provide assistance during busy periods.
The team members eventually convened a meeting (to which the employee was not invited), and drafted a document listing complaints about the new team leader, which was given to her manager. The manager accepted the document and refused to intervene when requested to do so by the employee. The employee also sought assistance from other managers who failed to intervene.
The employee eventually left the position due to the development of psychiatric conditions, including anxiety and depression.
The Supreme Court of New South Wales found the employer to be negligent in its duty of care to create a safe working environment; the managers involved had the capacity to take preventative action, but failed to do so.
The case studies highlight that both bullying and harassment have serious psychological consequences for those who experience it, and can be very costly for organisations that do not appropriately prevent and respond to it. Our Bullying & Harassment Awareness Training can help to improve skills to recognise, respond to and prevent bullying and harassment.
You can find more case studies of bullying & harassment law here.