Published: 16 January 2013
Author: Ryan Carlisle Thomas
Workplace Bullying - A New Right to Sue?
In October 2012, the House of Representatives Standing Committee on Education and Employment handed down its report on workplace bullying (Workplace Bullying "We Just Want it to Stop"). The report examined various aspects of workplace bullying and made 23 recommendations. Much of the report is necessarily devoted to an analysis of workplace bullying and acknowledgement of the problems associated with its prevalence and cost (both economic and social). Some of the measures will take time to implement, presuming that the requisite inter-governmental agreement can be secured.
The Committee's report reproduced the Ryan Carlisle Thomas "Triage Chart", which illustrates the confusing and unsatisfactory response of the legal system in Victoria to workplace bullying:-
A New Right to Sue?
One of the key points made in the Ryan Carlisle Thomas submission was that the range of conduct caught by the laws listed in the diagram above will not always capture "bullying" behaviour or, even if it is captured, may not furnish an individual with a right to sue and/or seek individualised redress. We (and others) recommended that there should be a discrete, standalone mechanism enabling a worker to take action.
The report has now recommended that the Commonwealth Government implement arrangements that would allow an individual right of recourse for people who are targeted by workplace bullying to seek remedies through an adjudicative process.
In arriving at this conclusion, the Committee also expressed the view that any such right of recourse should be handled by those with appropriate expertise, that it should not be costly or drawn out and that it should sit within a civil law jurisdiction because of the lower burden of proof required.
If such a right to sue is provided, it would have obvious benefits for those workers who fall through the gaps in the current laws.
However, it is pertinent to note that there was a dissenting view from three members of the seven person Committee (Mr Ramsey, Mrs Andrews and Mr Tudge). These members disagree with (among other things) the establishment of a new right to sue for bullying. The fate of such an initiative may therefore depend on the outcome of the next federal election.
Code of Practice and Regulations
The report also recommends the adoption and promotion of a Code of Practice to deal with "bullying" issues. Such a Code would not oblige compliance, but may be relevant as evidence of what an employer should have known. Also recommended is a voluntary system of employer accreditation and awards for good work practices.
In addition, the Report recommends the development and implementation of model Work Health and Safety Regulations that capture the minimum requirements for managing the risks of workplace bullying, applicable to all workplaces, as currently established in the draft Code of Practice: Managing the Risk of Workplace Bullying*
It seems to be envisaged that the Regulations would impose specific obligations, outlining what employers should be doing to comply with their duty of care. The consequences of a break of the Regulations would probably be similar to a break of the parent Act (that is, it would be for a regulator, such as WorkCover, to decide what action to take.)
Again, it should be noted that this recommendation was opposed by the dissentient members of the Committee.
The bulk of the report deals with systemic issues which need to be addressed in order to anticipate minimise and properly address workplace bullying. There are therefore several recommendations concerning the establishment of advisory services and guidance materials, promoting the economic benefits of positive working environments, training, cross-agency consistency, research and compiling and publishing of data.
Of all the recommendations in the report, the prospect of a new right to sue for bullying is, in our view, the most important (and welcome) one.
As noted in the Ryan Carlisle Thomas submission, in circumstances where other laws already encourage the establishment of precautions to prevent workplace discrimination, sexual harassment, disability harassment racial and religious vilification and the like, the addition of anti-"bullying" measures would be a negligible administrative burden. Many employers already have anti-"bullying" policies and have a commitment to prevention and elimination of the problem.
The economic and social benefits of preventing and addressing "bullying" behaviour as reported in the Productivity Commission, Research Report March 2010 "Performance Benchmarking of Australian Business Regulation: Occupational Health and Safety" in a more streamlined and effective way would be significant, in terms of workplace health and safety and savings on direct and indirect costs, such as those associated with productivity, insurance, workers' compensation and sick leave. Conversely, the costs of leaving the problem unaddressed are high.
* According to the website of Safe Work Australia, a revision of this draft Code of Practice is currently in progress and expected to be finalised in the first half of 2013.