Published: 17 July 2012
Author: Ryan Carlisle Thomas
Tougher bullying laws mean that there are more legal options available - but how effective are they?
In part 2, we continue to examine legal avenues to compensation.
Part 2: Legal Remedies for Bullying - Tort of Intentional Harm, Anti-Discrimination Laws, Occupational Health and Safety Act 2004 (Vic) and the Fair Work Act 2009 (Cth)
As noted in Part 1 of the blog, there are thresholds which apply to the recovery of common law damages arising out of personal injury at work, including bullying behavior. In New South Wales, there has been at least one example (Naidu's Case – see below) of a claimant arguing he was the victim of an "intentional tort" rather than an action based on negligence. In Victoria, such actions would still need to pass the 'serious injury' threshold under the Accident Compensation Act.
In any event, the intentional tort, like the criminal offence, will be more difficult to prove and will involve proving "intention" to harm. In the joint cases of Nationwide News Pty Ltd v Naidu and ISS Security Pty Ltd v Naidu  NSWCA 377, a majority of the Court (Spigelman CJ and Basten JA) found that, if the conduct is done in the course of employment, the perpetrator's employer can be vicariously liable. Further, Spigelman J observed that "calculated" conduct can either mean "a subjective, actual, conscious desire to bring about a specific result, or it can mean what is likely, perhaps overwhelmingly likely, to occur considered objectively" and that a test of "reckless indifference to a result will, in this context, satisfy the requirement of intention".
Reference was made, in Naidu's Case, to Northern Territory v Mengel (1995) 185 CLR 307, where the High Court included, in the concept of intentional harm:
"...acts which are calculated in the ordinary course to cause harm... or which are done with reckless indifference to the harm that is likely to ensue."
In Naidu's Case, Basten JA noted the additional observation in Mengel's Case, that: "An essential element in an intentional tort is the intention to cause harm, not merely the carrying out of an intentional act."
Spigelman CJ also commented that the nature and scale of conduct in Naidu was: "such... as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct."
Considerable care will still be needed in framing the action.
This is especially so in cases of bullying that arise as a result of performance management. As Basten JA acknowledged in Naidu:
"(W)here the work is stressful, possibly requiring a high degree of co-ordination amongst a team and quick decisions which must be acted on promptly. On one side of the line there will be forceful but legitimate direction, on the other illegitimate bullying. Again, whether a defendant crosses the line intentionally, recklessly or negligently, will involve nice questions".
Using anti-discrimination law
Supplementing the remedies discussed above are other laws that permit individuals to sue for compensation and other remedies. These include anti-discrimination laws, such as the Equal Opportunity Act 2010 (Vic), the Racial Discrimination Act 1984 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth).
Anti-discrimination laws can be used only where the bullying conduct also discriminates on the basis of one of the characteristics covered by these laws (sex, race, etc) or otherwise breaches the laws in other ways, for example, sexual harassment.
The Fair Work Act
In addition, the 'general protections' provisions of the Fair Work Act 2009 (Cth) may be triggered by certain forms of bullying behaviour akin to discrimination, or in cases where a worker is subjected to adverse action for exercising a workplace right, such as making a complaint of bullying. Again, this Act permits individuals to sue for compensation and other remedies.
In combination, the case law and statutes noted in these blogs offer a significant range of options for those with potential bullying claims. There is, however, no specific and discrete basis upon which employees are able to make a claim for being subjected to bullying at work. The categories of action available are constantly expanding and, while complications remain, it is always worth obtaining advice in cases of suspected bullying.