FIRM MANAGEMENT – OR GUILTY OF BULLYING?

Preventing harassment We have gradually become familiar with the idea that employers are responsible for preventing sexual harassment, over the last decade. Many employers have become sensitised to the problem, and the fact that it is a management responsibility neither to engage in it, nor to allow others to do so. The principal reason for this is some well published tribunal decisions sheeting vicarious responsibility home to the corporation. The essence of ‘sexual harassment’ is bullying with a sexual element, rather than sex discrimination as such. In generic terms, sexual harassment is repeated, or gross, acts or words of a sexual nature in relation to the person complaining, that is neither welcome nor invited, which makes the person subjected to it feel intimidated, insulted or humiliated. The essence of sexual harassment is the misuse of relative power in a relationship to introduce a sexual element, in a humiliating or frightening interchange, whatever the perpetrator’s intention. Preventing other bullying An employer who perpetrates, or allows their employees to get away with, or fails to deal preventively with, harassment in the workplace may also find themselves in breach of occupational health and safety laws and regulations; workers compensation and insurance obligations, and the industrial protection provisions. Failure to deal with bullying may lead to complaints of unfair dismissal (harassment and bullying affects performance by both victims and perpetrators and those affected by it in the workplace), and significant civil liability, too. Employers have ’embraced’ sexual harassment, but find it hard to deal with ‘harassment’ and bullying that does not have a sexual element. Bullying itself is a far greater problem than ‘harassment’ – whether it is sexual, or based on someone’s disability, some other ground covered by anti-discrimination laws. Bullying is a problem generally, and the opportunities for ‘risk’ are significant. Workplace bullying – ‘practical jokes’ or teasing -may lead to injuries either when they go wrong, (the classic example is where apprentices get burned because some idiot lights a flammable fluid in a workshop) or because the individuals accidentally put themselves or their peers in danger. In other cases the ‘joke’ may lead to offence being taken and a physical confrontation between its victim and the jokester – which may require a disciplinary response, not easy in the circumstances. In other cases the harassment or bullying may be perpetrated by the managers. These cases are complex. In such cases, an employer might not to able to deal with the parties fairly. Constructive dismissal One example of an unfair dismissal claim caused by bullying was dealt with by the Industrial Relations Commission in Melbourne in June (Dillon v. Arnotts Biscuits Limited U No. 31680 of 1997 10 September 1998.) A woman resigned from her job as a packer because of prolonged bullying by her supervisor, ‘to the point of reducing her to tears, putting her to work at a work station by herself and facing a blank wall with her back to her fellow employees, and deciding to obey or disobey the applicant’s return to work rehabilitation to suit himself.’ The supervisor was said to have singled the complainant out for special treatment to ‘toughen her up’. The Commissioner found Ms Dillon had been constructively dismissed, and ordered her to be reinstated. An unsafe system of work Another case, involving massive damages against the employer for failing to provide a safe system of work or protect the employee, was heard earlier this year in the Supreme Court of Queensland (Amold v Midwest Radio Ltd (Cullinane J, No 80 of 1994, 7 April 1998). Ms Arnold was employed by a newspaper in early 1991, and left – and had not worked since – in December of the same year. During her employment, the court found, she was regularly subjected to repetitious use of foul and abusive language and behaviour by her manager, Williams. He did the same to other employees, but more frequently to Ms Arnold. The language was described as ‘aggressive, bullying, abusive, belittling and sarcastic,’ and it was said that it ‘was often expressed in or accompanied by foul language.’ The manager was found to have asked the complainant to procure someone to kill another person, which distressed her. The court also found that he had threatened her employment. On one occasion he had called the complainant and another worker in to his office and gave each the opportunity of sacking the other. He would say that staff were ‘on their second or third warning’, including the plaintiff, who had not previously received any warning. The manager had also tried to cause trouble, playing one staff member against another, between the complainant and another worker by untruthfully alleging that the complainant had made a sexual harassment complaint to the AJA about the other worker, who he knew had previously been the subject of a sexual harassment complaint in another job. The manager had also engaged in aggressive and humiliating conduct to a gay fellow worker, in the complainant’s presence – calling him a ‘poofter’ and dumping his desk-top contents onto the floor for him to pick it up, and making homophobic remarks. The court found that the complainant was entitled to rely on offensive conduct to other staff members as adversely affecting her, though not directed at her. Finally, the manager refused to allow the complainant to take leave to see her de facto husband’s father, who was dying, saying that it was out of the question, too close to Christmas, and though she was entitled to compassionate leave he was not going to give her any (the father died two days later). The complainant then left, became afflicted with a serious psychiatric illness, and (later) sued. The Supreme Court found that Ms Arnold was not likely to work again. She was entitled to rely on her psychiatric injury, alone, as the basis of her claim that the employer had failed to take reasonable care to avoid injury to an employee, and had unreasonably exposed the plaintiff to a foreseeable risk of injury. Though the manager was entitled to use a ‘strong hand’ to turn a loss-making venture into a profitable one, his treatment was well outside acceptable parameters. The claim – that the -employer had failed to provide a safe system of work, and was in breach of its statutory duty under the Queensland Workplace Health and Safety Act 1989 -succeeded. Damages were awarded in the total amount of $572,512.87.Fortunately for the employer, the court contemplated but did not award aggravated and exemplary damages, because of a lack of evidence that the company knew enough, or when, of the offending manager’s conduct to oblige it to investigate and take remedial action. Bullying managers The case raises an important issue about corporate responsibility for humane management of staff. Much work has gone into educating employers about sexual harassment. It may be that this focus has unintentionally desensitised some to the need to prevent all bullying, including bullying under the guise of ‘strong management’. When does firm management become harassment and unfair treatment? The distinction is important and the moral of these stories is that employers must be very clear, and must clearly set out in its disciplinary, conduct, harassment and EO guidelines what is and is not acceptable behaviour, and the essence of the respective duties and responsibilities between workers. Sexual harassment, and racial or other discriminatory behaviour, is one kind of conduct easily outlawed: bullying and offensive conduct may bring even greater liabilities, even when ‘management’ do it. Are employers protecting themselves? It would seem not. The publishers of the newsletter, Discrimination Alert, (Issue No.72) report that Lawrence Richards, author of a new book for employers, cites survey evidence that companies are unaware of, or a unwilling to address, the real risk of complaints by bullying victims. He claims that that more than 94% of business surveyed did not comply with industrial law requirements; that almost half of the enterprises in some occupations (particularly retail) had paid out fines and costs for unfair dismissals in the last year, and :’It is estimated that there are up to 45,000 current claims for unfair dismissal and sexual harassment, and almost 370 new claims are being lodged each week.’ Those employers who have taken their responsibilities seriously will have a good defence, against not only complaints under equal opportunity laws (they may have taken ‘reasonable steps’ to prevent the harassment); but also to unfair dismissal claims. The best defence is good management: as always. Paul Bailey (source:Television Education Network Pty Ltd) paulb@gells.com.au

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