How bullying at a radio station led to changes

AudioNET Director Verity Webb has written this article following a breakfast briefing by Melbourne lawyers Hall & Wilcox, which outlined major changes to employment Acts and Codes to crack down on bullying in Australian workplaces.

In 2004, Ballarat Radio Pty Ltd became famous in Australia’s legal history for being the first Victorian company, and probably the first Australian company, to be convicted and fined for workplace bullying.

The case was prosecuted by WorkSafe Victoria and resulted in a $25,000 fine against the company as well as fines against the bullying employee.

At the time, WorkSafe Victoria said the case set a new benchmark for workplace safety and should serve as a warning that employers could not ignore what was happening in their organisations.

Since then the public spotlight on workplace bullying has been sporadic, highlighting only the worst cases such as that of Brodie Panlock, a cafe employee in Victoria who committed suicide after persistent bullying from fellow wait staff.

This tragic case led to ‘Brodie’s Law’ – a 2011 amendment to the Crimes Act in Victoria to include bullying as a criminal offence.

Last year’s House of Representatives’ Report on workplace bullying recommended all states and territories consider similar amendments.

The Federal Government has already agreed to several recommendations from the Report.

There has also recently been amendments to the Fair Work Act to give the Fair Work Commission powers in relation to stopping bullying in the workplace, which will take effect from 1 January 2014.

Jessica Fletcher, Special Counsel from Melbourne law firm Hall & Wilcox says employers that delay taking action to prevent or control bullying will soon find themselves in a very difficult position.

“The issue of bullying is more than just a trend or a fad – it is a serious workplace health and safety issue and, as a result of amendments to the Fair Work Act, it is also relevant to our industrial law framework,” she told a breakfast briefing for clients last week.

“Liability for workplace bullying extends to employers but also individuals within an organisation – individuals can be prosecuted for the role they play in perpetuating or not responding to workplace bullying. It’s definitely something that is here to stay and the quicker businesses get on board and take steps to prevent and manage workplace bullying, the easier it will be for them.”

Most notably, from January 2014, workers will have the right to take a bullying complaint direct to the Fair Work Commission.

The Commission will have powers to mediate, conciliate and conduct hearings.

Any orders the Commission makes in relation to bullying must be implemented and penalties will apply to companies that fail to implement, or breach, bullying orders. The Fair Work Act also affords protections for employees who may be sacked for making bullying complaints.

Complementing the introduction to changes in the Fair Work legislation, a Model Work Health and Safety Code developed under the new Work Health and Safety laws is also expected to come into effect in the near future, which will be a further guide to employers and employees on the issue of workplace bullying.

Ms Fletcher says the Draft Model Code for the Prevention and Response to Workplace Bullying doesn’t expect perfect behaviour from everyone at work all the time.

“The Code clearly defines bullying as repeated and unreasonable behaviour. So it does allow for fleeting exceptions. One-off instances of low level conflict are not going to mean that bullying has occurred,” she says.

However she says the Commission and safety regulators are likely to take a dim view of any organisation or any individual, that tries to defend bullying due to a competitive culture, or an individual with a ‘known’ personality that most staff work around.

“That’s not how the law will look at it. Knowing that you have a bully in the workplace makes it more imperative for employers to take action,” she cautions.

“The law doesn’t say that just because it’s the culture it’s fine – in fact that’s exactly what the Code is trying to prevent – a culture of bullying.”

To prevent workplace bullying, Ms Fletcher says employers should begin now to conduct a bullying risk assessment for their workplaces. She says there are several indicators of potential bullying risk that should be reviewed such as high staff turnover and unusual sick leave patterns.

She notes that bullying can also be unintentional on the part of the perpetrator, so communication is a key issue for employers to be aware of, particularly along reporting lines.

“Looking at the conduct of a supervisor – a key issue they need to be aware of is how they communicate with staff. For example, it can sometimes be that communicating only by email, particularly in respect of sensitive topics, is that what is said in an email can unintentionally be interpreted as tense or abrupt, which may lead to conflict.”

Some examples of bullying in the Code include erratic shift changes, withholding information staff need to do their work effectively, and assigning tasks that are menial.

However, Ms Fletcher says the Code stresses it’s not all about the employer.

“The Code makes it clear that preventing and controlling bullying is the responsibility of everyone in the workplace. And the Code has some very helpful, practical steps for employers and employees to take.”

At the very least Ms Fletcher says organisations must do a risk assessment soon to be able to identify workplace bullying or the potential for it to occur and then to implement suitable control measures.

“Identifiers of the potential for workplace bullying may include supervisors who have an autocratic style, workers who display aggressive behaviours, or even staff working with tight time-frames and under a lot of pressure, or things like having a younger workforce, which can be a risk factor for cyber-bullying,” says Ms Fletcher.

The next step is to have some control measures in place – this will include introducing a workplace bullying policy and complaint handling systems and then training the workforce on those policies and systems.

“It’s essential to have a system in place where people can bring a complaint to the appropriate people within the organisation so appropriate action can be taken. It is equally important to ensure your people know about the systems that are in place,” says Ms Fletcher.

The Code is 21 pages long, it’s written in plain English and it’s on the web here.
This article does NOT represent legal advice – speak to your Network lawyers, HR team or managers or contact the legal and HR team at Commercial Radio Australia.