Workplace Bullying and Harassment: Understanding the Difference and How to Respond To Allegations
Organisations have a common law duty to take reasonable care to protect the health and safety of their employees. Under the Occupational Health and Safety Act 2004, employers have a duty to provide and maintain a workplace that is safe, as far as is reasonably practicable. If bullying or harassment occurs in the workplace, it can be a breach of an employer’s duty of care. This can result in employers being held vicariously liable.
The terms ‘bullying’ and ‘harassment’ are often used interchangeably, but the terms in fact cover different kinds of behaviour. This article serves as a comprehensive overview of what constitutes bullying and harassment, how conduct differs and what organisations should be doing to respond to complaints or allegations made against employees and employers.
The difference in a nutshell
The key difference between ‘bullying’ and ‘harassment’ is how often or how many times the behaviour occurred. In order for behaviour to be classified as ‘bullying’, it needs to be repeated. However, a single incident can be considered harassment. Therefore, bullying behaviours can constitute harassment, and if harassment is repeated, it can be considered bullying. Bullying and harassment are covered by different legislation, which can affect how workplaces need to respond to allegations.
What is bullying?
Under S789FD of the Fair Work Amendment Act 2013 (Cth), bullying is defined as when an individual or group of individuals repeatedly behave in a targeted manner towards someone in a way that puts the employee’s health and safety at risk. Crucially, bullying generally involves deliberate actions between individuals where there may be a power imbalance, and usually results in some kind of physical or psychological harm.
Behaviour that may be considered ‘bullying’ includes:
- Aggressive and mean behaviour
- Yelling, screaming and offensive language
- Exclusion and isolation
- Psychological harassment
- Intimidation
- Assigning impossible jobs or meaningless tasks
- Undermining work performance
- Overloading someone with work
- Unreasonable work expectations
What are the laws?
Bullying is prohibited by the Fair Work Act 2009 and it is covered under Workplace Health and Safety legislation, where employers have an obligation to ensure the workplace they provide is free of bullying as much as reasonably practicable. Employers can be held vicariously liable for bullying that occurs between employees if they were negligent from preventing that bullying from occurring in the workplace.
Serious bullying can also amount to a criminal offence under S21A of the Crimes Act 1958, which was updated in 2011 so that the offence of stalking now covers behaviour that amounts to serious bullying. This carries a maximum penalty of 10 years imprisonment. This is also known as Brodie’s Law, which can apply to all forms of serious bullying, including physical and psychological bullying. There must be a course of conduct that amounts to repeated bullying and there must also be intention to cause physical or mental harm in order for the law to apply. The law is named after a young woman, Brodie Panlock, who died by suicide after suffering serious and ongoing workplace bullying.
What is harassment?
Harassment refers to unwelcome and unsolicited behaviour that a reasonable person would consider to be offensive, humiliating or intimidating. This is often done on the basis of particular protected attributes, such as race, disability and gender. The most common kind of harassment is sexual harassment.
Behaviour that could be considered harassment includes:
- Insults or taunts
- Suggestive comments or jokes
- Staring
- Unwelcome touching
- Explicit or sexually suggestive emails or text messages
- Derogatory comments
- Displaying offensive images or words
- Asking intrusive questions about someone’s personal life
What are the laws?
Harassment may be a breach of legislation when it is discriminatory, sexual in nature or when it poses a risk to someone’s health and safety. As harassment is linked so closely to discrimination, harassment is covered under various pieces of anti-discrimination legislation and employers must ensure they comply with legislation.
This includes:
- Sex Discrimination Act 1984
- Racial Discrimination Act 1975
- Disability Discrimination Act 1992
- Equal Opportunity legislation in each state and territory
What should an employer be doing to prevent and respond to bullying and harassment?
Employers should take the following steps to prevent workplace bullying and harassment:
- Ensure there are sound policies in place that outline the difference between bullying and harassment, that bullying and harassment will not be tolerated and the processes for investigating and resolving complaints.
- Develop a staff code of conduct which clearly sets out acceptable and unacceptable behaviours
- Ensure a culture of safety within the workplace and take positive steps to eliminate bullying and harassment within the workplace – culture must come from the top down and bottom up.
- Ensure employees are aware of all of their obligations and duties set out in relevant legislation
- Provide training on workplace bullying and harassment and employee’s obligations to ensure they engage in appropriate behaviour
Employers should take the following steps to respond to workplace bullying and harassment:
- Ensure that all allegations and complaints of bullying and harassment are properly investigated, and an outcome is reached.
- Ensure trauma-informed investigation processes are in place to respond to allegations of bullying and harassment and reduce the risk of further harm being caused by investigation processes.
- Following investigations of bullying and harassment, conduct a root cause analysis or cultural review to ensure that any systemic issues are rectified
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive experience working with employers to support and strengthen their safeguarding practices. We work with employers across Australia to ensure they are meeting their workplace health and safety obligations and frequently conduct independent safeguarding investigations.
Safe Space Legal provides the following services to ensure employers meet their legal obligations to safeguard employees:
- Drafting legally sound policies, procedures, and codes of conduct.
- Supporting employers to recognise gaps in policy and/or practice which put them at risk of non-compliance with legal obligations.
- Delivering training to ensure employers and employees are aware of their legal obligations in respect to workplace bullying and harassment.
- Conducting independent investigations which are compliant with relevant state and territory legislation and regulations.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations and are trauma informed.
- Assistance and support to respond to allegations of workplace health and safety breaches.
- Provide sound legal advice on risk mitigation.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.