July 31st, 2012
Guest: Workplace bullying litigation – a nasty war of attrition
Workplace Bullying Litigation – A Nasty War of Attrition
By Luke Williams, July 27, 2012, Australian Broadcast Corp (ABC, The Drum)
What’s worse than being bullied in your workplace? Making a complaint about it.
Countless victims say that when they make bullying complaints internally, their employer has a tendency to take sides; either ignoring, suppressing or over-reacting to their complaints.
Employer responses to allegations of workplace bullying often become an extension of the bullying culture – exacerbating the cruel, calculating and costly behaviour which created the very problem to begin with.
Employers have a tendency to start an adversarial, litigious war of attrition against the victim or even the perpetrator. Workplaces and workers very often turn on the complainants, making allegations of covert behaviour very difficult to prove.
The already traumatised become so stressed they report nightmares, obsessive thinking – even hair loss, asthma and dental problems in the more extreme cases.
Take Wendy, a gentle, softly spoken former arts worker in her 40s who I met last year. She talks as a frown burrows its way into her sickly pale skin, holding a framed photo of herself taken before she left her old workplace six years ago.
Since then she says she has gained 15kg, but it’s hard not to notice her hair has gone from dark brown to almost entirely grey in that time.
Accompanied by her psychologist, Wendy says the bullying started after she defended another colleague who was being teased and excluded by the other staff. Her co-workers then turned on her; “Every time I went to speak to someone, they turned their back and just ignored me,” Wendy says.
Rumours, innuendo and sometimes blatant teasing followed. Wendy left her job deeply hurt, upset – even confused. She was diagnosed with post-traumatic stress disorder by WorkCover doctors; an assessment which gave her a legal right to sue.
The accused was eventually sacked, but Wendy’s government-funded workplace fought her common law claim every step of the way – ultimately defeating her claim on appeal in the NSW Court of Appeal after many years of trials and investigations.
Wendy’s mental health has been on a downward spiral since the court case began.
In 2006, 19-year-old Melbourne waitress Brodie Panlock jumped off a roof to her death, following years of sustained bullying (including being repeatedly spat on and having fish sauce poured all over her) from her colleagues. The public outrage led to the criminalisation of workplace bullying under the Victorian Crimes Act.
A national parliamentary inquiry into workplace bullying is currently underway. The Federal Government should be commended for putting this important issue on the national agenda. The Parliamentary Standing Committee on Education and Employment Relations has received hundreds of submissions and is now on the last stages of a national tour of public hearings.
Adding to the complexity; the definition of bullying as a form of sustained stalking in the Victorian Crimes Act is clearly at odds with the covert and more subtle bullying detailed in many of the submissions. Nonetheless, Minister for Workplace Relations Bill Shorten has hinted at the creation of national workplace bullying laws.
As it stands, a complainant faces a confusing and sometimes contradictory mixture of anti-discrimination, compensation, industrial and contract laws to try to find a remedy or resolve the dispute.
Mental stress worker compensation injury claims related to workplace bullying are common (about 1,000 a year) – regularly becoming messy and expensive claims contested in the Supreme Court where complainants frequently report feeling like they are the one on trial.
Anti-bullying website Know Bull Australia says that while around half of workplace bullying complainants they surveyed complained to their workplace, 89 per cent say their workplace had not been dealt with satisfactorily.
Christine Hodder, 38, lodged two formal complaints about serious bullying by officers at an ambulance station in NSW where she was their first female officer.
The bullying – which included slashing her tyres and urinating all over her toilet area – didn’t stop; her then husband says management ‘ignored her complaints’.
Hodder eventually committed suicide in April, 2005, leaving behind her 3-year-old daughter. She had handed a five-page formal complaint to management just three months before her death. None of the accused were disciplined.
West Australian teacher Emily Chambers told me her workplace reacted against her when she made a bullying complaint. Emily says she was subjected to deliberately unfair scheduling of her work, snide comments, and people rolling their eyes every time she spoke. She made a complaint:
… I then discovered the alleged perpetrator was close friends with some people in management. The school spent thousands on a private investigation firm run by ex-police officers who dismissed all my claims after cross-examining me in a taped interview and then writing a lengthy report where the investigator suggested the only reason I made the complaint was because nobody liked me …
Then I made an FOI and discovered the firm had been paid over $20,000 to produce the report and have produced many more since. My compensation claim wasn’t even worth that much.
Following the investigation, Emily had a monumental breakdown and left her job. Her compensation claim was rejected based on the investigators report and despite holding a master’s degree, she is now unemployed. Emily has been doggedly pursuing justice for the past eight years.
Workplaces certainly need help dealing with workplace bullying, but there are divergent views on whether workplaces need to be compelled or simply encouraged to better handle bullying complaints.
Many people argue for the creation of a mechanism where a complainant can seek a remedy in a fast, efficient and less adversarial manner; that a special tribunal could be created through Safe Work Australia, HREOC or the states.
Lisa Heap, executive director of The Australian Institute of Employment Rights, told me she thinks legal definition as well as non-adversarial dispute settlement procedures should be created through Fair Work Australia:
My experience as a lawyer has shown me that without a doubt, in nearly every situation, once the litigation process starts, the (alleged) victim just gets worse and worse until they are so sick they never work again. It’s very sad, isn’t it?
The majority of groups are strongly opposed to the Fair Work idea because they say it turns a ‘safety issue’ into an industrial relations matter. Others simply oppose involving court processes at all – as yet another ineffective burden on businesses already dealing with increasing compliance costs.
Incongruously, industry groups say they can be caught in a ‘double jeopardy’ – many alleged perpetrators have won unfair dismissal payouts after Fair Work Australia found the workplace acted too hastily by sacking them after bullying allegations were made.
Many workplaces are genuinely at a loss with how to deal with workplace bullying. Punitive measures can be a negative, back-end approach and may well lead to more unnecessary litigation. Regulation will only be effective if it fosters flexibility and cooperation.
Workplaces and complainants don’t need to start a war; they need to be guided on how to take a collaborative, problem-solving approach to deal with workplace bullying.
Luke Williams is a freelance journalist studying law at Monash University. He spent many good years learning journalism with the amazing people on triple j’s Hack program. The youthful fun came to an end – Luke now studies law. He is now concentrating on issue analysis and investigative journalism.
This entry was posted on Tuesday, July 31st, 2012 at 11:25 am and is filed under Guest Articles, Laws Outside the U.S., Tutorials About Bullying. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.