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Workplace bullying seen as the "RSI of the noughties"

With the law around workplace bullying still shrouded in uncertainty, Stephanie Quine asks whether employees are taking advantage of this to one-up their employers

user iconLawyers Weekly • 28 July 2011 • NewLaw
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With the law around workplace bullying still shrouded in uncertainty, Stephanie Quine asks whether employees are taking advantage of this to one-up their employers

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Identifying genuine cases of workplace bullying can be difficult, says Blake Dawson partner and industrial relations specialist, Rachel Bernasconi.
The inherent difficulty in defining what exactly constitutes bullying has seen an increase in work-related bullying claims, according to workplace lawyers.

More and more cases, they say, are emerging whereby an employer is legitimately trying to manage an employee's performance and that employee responds by either going on stress leave or with an allegation of bullying.

"It makes the performance management far harder to achieve, because you've thrown into the mix all of those issues around bullying, which you then have to investigate separately," says Rachel Bernasconi, an industrial relations employment lawyer and partner at Blake Dawson.

Gerard Phillips, the head of Middletons' workplace relations and safety group, says the lack of a statutory definition of bullying not only poses a threat to necessary processes of performance management, but also detracts from genuine claims of bullying.

Phillips says he has heard of cases where young lawyers give mutually opposed definitions of bullying, such as "overloading someone with more work than they can possibly do" or "giving them nothing".

"What RSI (repetitive strain injury) was to the '80s, bullying is to the noughties. If everything becomes bullying, it becomes like 'the bully who cried wolf'. It's a shame, because without a doubt there are people who are genuinely bullied," says Phillips.

According to Bernasconi, identifying genuine cases of workplace bullying, which is often highly subjective, can be difficult unless there is a pattern of behaviour.

"A lot of the time, it's about impressions. There is nothing in writing, it is one person's word against another's and it can be very subtle," she says, adding that sometimes those alleged to be bullying are "quite shocked that their behaviour would be perceived in this way".

"If you get some kind of pattern of behaviour or a number of witnesses of the alleged behaviour ... stories come out of the woodwork. It's a lot harder if it's a one-off incident."

Bernasconi says that the "adverse action" provisions introduced into the Federal Fair Work Act in July 2009 have also opened up "easier avenues" for employees to make a claim than under previous legislation.

"There are still certain constraints on how you would frame a claim, but these provisions are definitely being increasingly used," she says.

Recent amendments to the Crimes Act in Victoria also seek to prohibit bullying, but Bernasconi says those amendments address "serious bullying" and there is currently no national overarching code or legislation addressing the issue.

"It's one of the most difficult things to advise on and manage in the workplace if these allegations come up," she says. "If it's not managed in a way that the employee feels like they can stay in the workplace, it often leads to them leaving."

Bullying in law firms

In light of the latest harassment claim against global firm DLA Piper (see full article), workplace relations lawyers agree there is a higher awareness around rights in the workplace nowadays, but that bullying in law firms is no more frequent than in other workplaces.

Cameron Dean, a partner in McCullough Robertson's workplace relations and safety group, regularly gives training on what workplace bullying means, how it operates and what peoples' responsibilities are. He says that while bullying in law firms is an issue which has gained a lot of press, it is not any more of an issue than for any other profession.

"There will always be claims of this nature made whether you're a lawyer, whether you're an accountant, whether you're an architect," says Dean.

"I'd love to believe that we maintain a high standard as a profession, but we are not subject to a lesser standard and we will be held to account to that same standard. I don't think the fact that we are lawyers makes us immune from allegations of bullying.

"Most people, when they join a profession, have an expectation of what the level or standard is within the workplace ... but that doesn't meant there can't be inappropriate behaviour in [that] workplace, or that people can't do something about it."

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