Dealing With Prj

8/4/2019 Dealing With Prj

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DEALING WITH

WORKPLACEBULLYING

Aashima Gandhi BCOM (HONS.)Roll No. 2174


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CONTENTSDEALING WITH WORKPLACE BULLYING


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I. Introduction

II. What is workplace bullying?

III. Examples of bullying behaviour

IV. What isnt bullying behaviour?

V. Factors contributing to workplace bullying

VI. Impact of workplace bullying

VII. What can you do about it?

VIII. What the law says

IX. Appendix One

X. Overview of relevant legislation

XI. Where to go for further information and assistance


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Introduction Bul ly ing i s no t accep tab l e workp lace behav iour andi t shou ld no t be t o l e ra t ed i n any fo rm.Thi s p rac t i ca l gu ide has been deve loped to he lpemployees i den t i fy and dea l wi th bu l ly ing in t he

work p lac e . I t a im s to p r ov i d e p rac t i ca l ad v ice andin fo rma t ion on making workp laces sa fe r fo r eve ryoneconce rned .Th i s gu ide recommends tha t workp lace bu l ly ing bet rea t ed l i ke any o the r hea l th and sa fe ty haza rd . As pa r to f norma l workp lace r i sk management p rocedure s ,bu l ly ing inc iden t s , p rac t i ce s o r po t en t i a l fo r bu l ly ingshou ld be i den t i f i ed , a sse ssed fo r r i sk , and s t eps t akento min imise t he r i sk . Fo l low-on p rocedure s shou ldensure bu l ly ing does no t occur o r con t inue .Bul ly ing can adve rse ly a ffec t t he hea l th and sa fe ty o f employees . I t i s unaccep tab l e unde r t he O ccu p a t io n a l H ea l th , Sa f e ty an d Wel f a r e A c t 1 9 8 6 , ( t he O H S&W A ct )and the O ccu p a t io n a l H ea l th , Sa f e ty an d Wel f a r e Reg u la t io n s 1 9 9 5 .The l eg i s l a t i on requ i re s employe rs t o a t t empt t o r e so lve

hea l th and sa fe ty i s sues wi th Hea l th and Sa fe tyRepre sen t a t i ve s , Hea l th and Sa fe ty Commi t t ee s andemployees .Due to t he sens i t i v i t y o f many bu l ly ing inc id en t s , t h i sgu ide s t rong ly recommends tha t , whe reve r poss ib l e ,ag reed p rocedure s a re conduc ted a s i n f o rma l ly a sposs ib l e i n conf idence , and wi th f a i r p rocedure s t omin imise conf l i c t and s t r e ss fo r t he i nd iv idua l s i nvo lved .Employees a re encouraged to pa r t i c ipa t e i n d eve lop ingsa fe work p rocedure s t o dea l wi th bu l ly ing , andprov id ing i t i s sa fe t o do so , shou ld repor t i nc iden t s o f bu l ly ing to an appropr i a t e pe r son a t t he workp lace .

WHAT IS WORKPLACEBULLYING?The fo l lowing def in i t ion is included in sect ion 55A (1)of the Occupat ional Heal th , Safety and Welfare Act 1986: Workplace bul ly ing means any behaviour that is repeated , sys tematic and directed towards anemployee or group of employees that a reasonableperson, having regard to the c i rcumstances , wouldexpect to v ic t imise , humil ia te , undermine orthreaten and which creates a r isk to heal thand safety. Repeated r e f e r s to the pe r s i s t en t o r ongo ing na tu re o f the behaviour and can refer to a range of d ifferenttypes of behaviour over t ime.Sys tematic refers to having, showing or involving amethod or p lan . Whether behaviour is sys tematicor not wil l depend on an analys is of the c i rcumstancesof each individual case with th is general guidel inein mind .Risk to heal th and safety inc ludes the r i s k to theemotional , mental or phys ical heal th of the person(s )in the workplace.

EXAMPLES OF BULLYING


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BEHAVIOURBullying behaviour can be obvious and aggressive.Examples could include: Abusive , insu l t ing or offensive language; Behaviour or language tha t f r ightens , humil ia tes , beli t t les or degrades, including cri t icism that isdelivered with yell ing and screaming; Teasing or regular ly making someone the brunt of practical jokes; Disp laying mater ia l tha t is degrading or offending; Spreading goss ip , rumours and innuendo of amalicious nature.Violence, assault and stalking are extreme forms ofbullying that consti tu te a criminal offence. Suchbehaviour should be reported directly to the police.Examples include, but are not l imited to : Harmful or offensive in i t iat ion practices; Physica l assaul t or unlawful threa ts . Workplace bullying can also be subtle and may includebehaviour such as: Del ibera te ly excluding , iso la t ing or marginal is ing a person from normal workplace activ it ies;

In truding on a person s space by pestering, spying ortampering with their personal effects or workequipment; In t imidat ing a person through inappropria te personal comments, beli t t l ing opinions or unjustif ied cri t icism.Covert behaviour that undermines, treats lessfavourably or d isempowers others is also bullying.For example: Overloading a person with work; Set t ing t imelines tha t a re very d iff icu l t to achieve , or constantly changing deadlines; Set t ing tasks tha t a re unreasonably beyond a persons ab i l i ty ; Ignoring or isolating a person; Del ibera te ly denying access to information , consultat ion or resources; Unfa ir t rea tment in re la t ion to access ing workplace enti t lements, such as leave or training.

WHAT ISNT BULLYING BEHAVIOUR?As s t a t ed i n sec t i on 55A (2 ) o f t he O ccu p a t io n a l H ea l th , Sa f e ty an d Wel f a r e A c t 1 9 8 6 bul ly ingbehav iour does no t i nc lude : Reaso n ab le ac t io n tak en in a r easo n ab le man n er b y an employe r t o t r ansfe r, demote , d i sc ip l i ne , counse l ,

r e t r ench o r d i smi ss an employee ; A d ec is io n b y an emp lo y er, b ased o n r easo n ab le g rounds , no t t o award o r p rov ide a p r omot ion ,t r an s f e r, o r b en ef i t in co n n ec t io n w i th an emp lo y ees employment ; Reaso n ab le ad min is t r a t iv e ac t io n tak en in a r e a sonab le manne r by an employe r i n connec t i on

wi t h a n emp l oy ee s em pl oy m en t ; o r Reaso n ab le ac t io n tak en in a r easo n ab le man n er unde r an Ac t a ffec t i ng an employee .

FACTORS CONTRIBUTING TO


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from potentially risky situations and access tocounselling/debriefing can all assist to control this risk.

IMPACT OF WORKPLACEBULLYING

Workplace bullying may cause extensive health

problems for employees exposed to this hazard,including physical and psychological illnesses andinjuries. It can impact on co-workers, clients,customers, business associates, family and friends.The reaction of individual employees will vary accordingto the nature of the bullying. It is possible thatemployees who are bullied may experience some of thefollowing effects: Stress, anxiety or sleep disturbance; Panic attacks or impaired ability to make deci sions; Incapacity to work, concentration problems, loss of self-confidence and self-esteem or reduced outputand performance; Depression or a sense of isolation; Physical injury; Reduced quality of home and family life; Suicide. The costs to the organisation include reducedefficiency, unsafe work environment, increasedabsenteeism, poor morale, increased workerscompensation claims and civil action.

WHAT CAN YOU DO ABOUT IT?Bullying can and should be stopped. Every situation isdifferent and how you handle bullying will depend onyour particular work environment, the systems availablein your workplace and the nature of the bullying.If you are being bullied, you could take action yourselfor follow a more formal approach. The followingpersonal and informal steps are recommended as a firstapproach in dealing with most bullying cases.

CHECK FOR A WORKPLACE BULLYING POLICYAND COMPLAINT PROCEDURECheck whether your employer has a policy andcomplaint resolution procedure for workplace bullying.It may be available in the organisations induction package for all new employees, or it may be includedin the in-house newsletters or displayed on noticeboards. There may also be grievance procedures inyour industrial award or employment agreement.Most complaint procedures have an informal resolutionprocess aimed at resolving issues as quickly as possible in ano blame, conciliatory manner, as well as a more formalinvestigation process.

SEEK ADVICEIf available in your workplace, seek advice from yourContact Officer or Grievance Officer, Health and SafetyRepresentative, Human Resources Officer or UnionOfficial. You should not make allegations aboutbullying behaviour or harassment to people who arenot involved in the handling of complaints in yourworkplace. The alleged bully is protected by


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confidentiality provisions in law and may be able totake action if the complaint is not handled properly.You should not have to submit a written complaintwhen making an informal complaint, although youmay be advised to keep a record of what is happening.

KEEP A RECORDMake a detailed record of what happened - place,date, time, persons (both those involved and thosepresent) and what was said or done. Ensure that yourrecords are accurate. This information may be usefullater, particularly if more formal steps need tobe taken.

APPROACH THE BULLYIf any form of bullying happens to you and you feelsafe and comfortable to do so, make it quite clear tothe bully as soon as possible that the behaviour isunwanted and unacceptable and that you will nottolerate it.Silence allows the bully to continue intimidating you.If you don't say something, the harassment may getworse. Body language is also an effective way tocommunicate, especially when combined with a clearstatement.You may decide to discuss how you should approachthe bully with a Contact Officer or Grievance Officer,if available, before doing so.Another informal way to stop the behaviour is to asksomeone else, such as the Grievance Officer, toapproach the bully on your behalf or to mediate orfacilitate face-to-face discussions and find a resolutionthat is acceptable to everyone involved.

USE A COUNSELLING SERVICESome workplaces offer counselling services toemployees. This may be provided free if yourorganisation provides an employee assistance program.Counselling may help you to develop ways of dealingwith a bully or the effects of bullying.

Your Human Resources Officer should have informationon an employee assistance program if there is one.Your union may also be able to provide information.The WHERE TO GO FOR FURTHER INFORMATION AND ASSISTANCE section of this booklet providesinformation on external agencies that you canapproach for advice or assistance.

USE MORE FORMAL PROCEDURES

A formal investigation may be required if the informalprocedures are not successful or in s ituations where theallegations are more serious and there has been lessfavourable treatment or actual physical or psychologicalharm. This would usually be confirmed by preliminary

enquiries undertaken by a Grievance Officer before aformal investigation is undertaken.

You may decide, or be required (if your workplace hasa complaint process) to lodge a written complaint toyour employer. If a formal investigation does occur, animpartial person who is not involved in the particularsituation should carry this out. The investigator shoulddocument your report and keep a record ofinformation gathered in the course of the investigationand you should be advised of the outcome.Further, in the event that an investigation goes aheadyou should be advised of: Your right to representation;


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Who will conduct the investigation; Measures i n place to protect confidentiality andprocedural fairness; The timeframe for the investigation; Possible outcomes and actions by the employer; Who will be provided with a copy of your statement and any report that may be produced; Your entitlment to a copy of your own statement.

HEALTH AND SAFETY REPRESENTATIVES ANDHEALTH AND SAFETY COMMITTEESYou may decide to contact your Health and SafetyRepresentative to discuss a problem with workplacebullying.The functions of an elected Health and SafetyRepresentative include liaising with employees onhealth, safety and welfare matters, and reporting tothe employer any hazard or potential hazard to whichemployees might be exposed. Where there is a Healthand Safety Committee, the Health and SafetyRepresentative may refer the matter to the Health andSafety Committee.Consultation with Health and Safety Representativesand Committees should be part of the processes usedto develop anti-bullying strategies and the ongoingmonitoring and review of the effectiveness of thestrategies.Where bullying is an identified workplace hazard theemployer is obliged to provide the Health and SafetyRepresentative with any information the employer has,or can be expected to have about bullying.If workplace bullying is reported, the employer shouldconsider the extent to which the Health and SafetyRepresentative should be involved in resolving the issue,and the rights of both parties to confidentiality pendinginvestigation.The workplace policy and procedures should addressboth of these issues.RESOLVING ISSUESThe OHS&W Act requires employers to attempt to

resolve health, safety and welfare issues with the Healthand Safety Representative, Health and Safety Committeeor employees, according to the relevant procedures forthe workplace. If these procedures do not succeed, theOHS&W Act sets out steps to resolve the issue.If an issue remains unresolved and/or there is a risk ofserious and imminent injury or harm to someone, eitherthe employer or a Health and Safety Representative mayrequest an OHS Inspector to attend the workplace.If there is no Health and Safety Representative or Healthand Safety Committee, you or another employee maylodge a complaint with SafeWork SA. An OHS Inspectorwill then attend the workplace and take whateveraction under the legislation she or he considersappropriate.

The OHS Inspectors role is to ensure the employer and employees meet their obligations under the legislation,not to mediate between the bullied person and thealleged bully. However, if after investigation into thematter, the OHS Inspector believes the involved partiescan resolve the issue they may refer the case to theIndustrial Relations Commission (IRC) for conciliation ormediation.A summary of relevant legislation and contacts forfurther advice are provided at the end of this booklet(see Appendix One and page 13).END RESULTSIn situations where the employer or the OHS Inspectorconcludes that the complaint of workplace bullying is


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justified there may be disciplinary action, usually inaccordance with the anti-bullying policy and withrelevant legislation. The employer is also required tomake changes to the workplace to ensure that anybreach of occupational health and safety legislation isrectified and the bullying ceases. These changes mayinclude counselling for the alleged bully to enable themto recognise and take action to change their behaviour.

WHAT THE LAW SAYSOCCUPATIONAL HEALTH, SAFETY ANDWELFAREThe OHS&W Act deals with the general wellbeing ofemployees at work. Section 4 (4)(a) The prevention ofwork related injuries and illness are both mattersrelated to occupational health, safety and welfare.Section 4 (4)(b)Incidences of workplace bullying can have an adverseimpact on the psychological wellbeing of an employeeand prolonged bullying often manifests as a physicalhealth issue for the aggrieved party. As such, mattersof workplace bullying fall within the jurisdiction of theOHS&W Act.A person who is the subject of bullying behaviour, can

make a complaint to SafeWork SA. SafeWork SA willinvestigate and ensure the employer and employeesmeet their obligations under the OHS&W Act.An OHS Inspector does not mediate between theemployer and employee or between the bully andbullied person(s). However, the inspector may referthe matter to the IRC for conciliation or mediation.Employers Responsibilities The OHS&W Act places a duty of care on employers toensure as far as reasonably practicable that employeesare safe from injury and risk to health while at work.Section 19 (1) This requires the employer to actively takesteps to prevent incidents that may injure an employeeor place the health of an employee at risk. Employersmust also take steps to minimise or reduce risks, when

elimination of the risk is not possible.In regard to workplace bullying, the duty also requiresan employer to investigate complaints (relating to anystaff member), address and document the issues raised,and to take appropriate action when necessary.An employer who does not take reasonable s teps toreduce or eliminate bullying in their workplace may bein breach of the OHS&W Act and be liable to penaltiesprescribed by section 19 of the Act. The maximumpenalty for breaching an employers duty under the OHS&W Act is $100,000 for the first offence and$200,000 for subsequent offences.

Employees Responsibilities Employees have a duty under the OHS&W Act . Anemployee must take reasonable care to avoid adverselyaffecting the health and safety of any other personthrough an act or omission at work. Section 21 (1a)This duty means an employee may actually be in breachof the Act by failing to act where appropriate. Suchaction does not necessarily mean an employee mustdirectly intervene when they become aware of workplacebullying. In some circumstances it may be more prudentto bring the matter to the attention of the appropriateperson within the workplace. All staff should be madeaware of their duty toward fellow employees, particularlythose staff in positions of authority, whose actions andmessages to lower status employees may have a moresignificant impact than anticipated or intended. The


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maximum penalty for breaching section 21 (1a) of theOHS&W Act is a fine of $5000.Responsibilities of All PersonsWhen a person (who could be an employer or employee)has actual knowledge that another persons health and safety is being endangered, and is recklessly indifferentas to whether this person is being endangered, thatperson could be liable for committing an aggravatedoffence. Section 59 Offences under this section areconsidered very serious. They are minor indictablecriminal offences, and carry a maximum 5 year term ofimprisonment, and/or double the prescribed penalty.Whilst this section would only be used in extremecircumstances, it could be actioned if an employer (oremployee) was involved or complicit in serious bullyingbehaviour in the workplace.EQUAL OPPORTUNITYSometimes bullying behaviour involves elements ofdiscrimination. The types of discrimination covered bySouth Australian law include disability, race, sex, age,sexuality, pregnancy and marital status. Employees beingbullied on any of these grounds can make complaints tothe Equal Opportunity Commission, who will try toresolve the complaint privately by conciliation. Ifsettlement cannot be reached, cases can be referred tothe Equal Opportunity Tribunal for a public hearing anddecision. Under discrimination laws, all types ofemployees are covered, including casuals, volunteersand those on contract or probation. The Commission'swebsite (www.eoc.sa.gov.au) has extensive informationabout discrimination and everything you need to knowabout lodging a complaint.

APPRENTICESHIPS AND TRAINEESHIPSIn South Australia, contracts of training are the legalbasis for traineeships and apprenticeships, which aregoverned by the Training and Skills Development Act 2003 (the T&SD Act ).Contracts of training and the T&SD Act set out someof the rights and responsibilities of employers, trainees

and apprentices. For example, the contract of trainingrequires employers to meet all legal requirements,including occupational health and safety requirements.It also requires employers, trainees and apprentices totry to resolve any complaint, grievance or disputebetween themselves. If they can not resolve the issues,they are required to contact Traineeship andApprenticeship Services to request assistance or toaccess the appropriate dispute resolution processes.WORKERS COMPENSATION Though the Workers Rehabilitation and Compensation Act 1986 does not mention bullying specifically,psychiatric disabilities caused by bullying at work, arecompensable if, and only if, the employment was asubstantial cause of the disability. An employee may

make a claim for compensation regarding anycompensable injury that arises out of, or in the courseof their employment. For more details refer to section30A of the Workers Rehabilitation and Compensation Act 1986.INDUSTRIAL RELATIONSThere is no specific provision in the Fair Work Act 1994 that deals with workplace bullying, however, where anemployee is dismissed or forced to resign as a result ofworkplace bullying, the worker may be entitled tomake a claim under the unfair dismissal provisions ofthat Act.Where it can be demonstrated that an industrialdispute exists between an employer and employee and


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all of the necessary requirements of the Act have beenmet, a notice of industrial dispute can be lodged withthe Industrial Relations Commission of South Australiato seek its assistance to resolve the dispute.CRIMINAL LAWWorkplace bullying may also amount to criminalbehaviour in breach of various criminal legislation.Examples include assault and unlawful threats.

See Appendix One for an overview of the relevant legislation and legal obligations.Commonwealth Legislation - Racial Discrimination Act 1975 - Sex Discrimination Act 1984 - Disability Discrimination Act 1992 - Human Rights and Equal Opportunity Commission Act 1986 - Trade Practices Act 1974 - Age Discrimination Act 2004 Criminal Law Duty of Care Industrial Instruments Behaviour that is workplace bullying, pursuant to theOccupational Health, Safety and Welfare Act 1986,may also be in breach of an employees contract of employment at common law and/or an Act ofParliament under which the employee is employed.This may render the employee, responsible for thebullying behaviour, liable to disciplinary action.Commonwealth discrimination laws protect peoplefrom discrimination in the workplace and in publiclife. Complaints are assessed in order to determinewhether they should be investigated underCommonwealth law or referred to State law.When workplace bullying involves behaviour that onits face is in breach of criminal laws, the incidentbecomes a police matter and may be dealt with inthe criminal jurisdiction.An employer has a duty of care at common law toreasonably protect employees from behaviours that

amount to bullying under the Occupational Health,Safety and Welfare Act 1986.There is no specific provision in the Fair Work Act 1994 that deals with workplace bullying. However,where an employee is dismissed or forced to resignas a result of workplace bullying, the employee maybe entitled to make a claim under the unfairdismissal provisions of that Act.Where it can be demonstrated that an industrialdispute exists between and employer and employeeand all the necessary requirements of the Act havebeen met, a notice of industrial dispute can belodged with the Industrial Relations Commission ofSouth Australia to seek its assistance to resolve thedispute.

Industrial instruments such as enterprise agreementsand awards usually contain grievance proceduresthat can be used to assist in resolving disputesinvolving bullying.

LEGISLATION SITUATIONFair Work Act 1994 Common Law and/or Employment Acts Appendix One OVERVIEW OF RELEVANT LEGISLATIONAppendix One


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OVERVIEW OF RELEVANT LEGISLATION continued South Australian Equal Opportunity Act 1984 Workers Rehabilitation and Compensation Act 1986 Section 19 of the Act requires that all employersprovide a safe working environment and this appliesto all areas inclu ding the employees mental health and wellbeing.Section 21 (1a) of the Act requires that an employeemust take reasonable care to avoid adversely

affecting the health or safety of any other personthrough an act or omission at work.Section 55A of the Amended Act includes adefinition of Workplace Bullying and details themethodology involved for the investigation,mediation and conciliation of involved parties.Where bullying in the workplace involves acts ofdiscrimination, a complaint may be lodged with theCommissioner for Equal Opportunity. Discrimination,includes unfair treatment based on a person'sdisability, race, sex, age, sexuality, pregnancy andmarital status.Equal opportunity laws also protect employeesagainst sexual harassment. It is also unlawful foranyone to victimise a person because they have

made, or intend to make, a discriminationcomplaint.An employee may make a claim for compensationregarding any compensable injury if it arises out of,or in the course of their employment. Though theAct does not mention bullying specifically,psychiatric disabilities caused by bullying at work,are compensable if, and only if, the employmentwas a substantial cause of the disability. Refer tosection 30A of the Workers Rehabilitation and Compensation Act 1986.LEGISLATION SITUATIONOccupational Health, Safety & Welfare Act 1986 WHERE TO GO FOR FURTHER INFORMATION AND ASSISTANCEStop Bullying in SA Websitewww.stopbullyingsa.com.auOr contact one of the following associations.Business SAProvides members with training, advocacy, support,and consultancy where appropriate.Appointments can be made on (08) 8300 0101anytime between 8am and 5.30pm Monday to Friday,Business SA is located at 136 Greenhill Road, Unley.For more information on the services provided byBusiness SA go to www.business-sa.comEqual Opportunity CommissionProvides an independent complaint handling service tohelp employees address sexual harassment anddiscrimination (based on disability, race, sex, age,

sexuality, pregnancy or marital status). Also takes updiscrimination complaints from job seekers, customers,students and tenants.The Equal Opportunity Commission can be contactedon (08) 8207 1977, or on 1800 188 163 if outside themetropolitan area, between 9.30am and 4.30pmMonday to Friday, and is located atLevel 2, 45 Pirie Street, Adelaide.For more information on the services provided by theEqual Opportunity Commission go towww.eoc.sa.gov.auIndustrial Relations CommissionProvides mediation, alternative dispute resolution andsupport to persons (and their representative) involved


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Wednesday, Thursday and Friday and is located atLevel 1, Station Arcade, 52 Hindley Street, Adelaide.For more information on the services provided by theWorking Womens Centre go to www.wwc.org.au

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