Bullying at Work in the Trade Professions

by | Sep 9, 2021 | Tradie Businesses

Many people in trades have to face from time to time the issue of bullying in the workplace and the issue is now more highlighted than ever before in the times we live in where there is overall a greatly increased awareness in the public domain of mental health.

If you are an employer (or an employee) in the trades industry the question arises as to what your options are to deal with an allegation of bullying or where you know bullying has occurred and or is witnessed.

As an employee, it is a difficult situation if you are being bullied at work and there often will be no easy solution, particularly when the person doing the bullying is your boss. But there are certain legal ramifications if the issue is unaddressed, primarily on the employer but also potentially on fellow employees. And there are obviously potential health impacts on the employee which back up the assertion that the issue must be resolved.

But there are options…

What I am about to say has relevance not only to employees but it is good for employers to know what options there are generally but also for the employer to know what options they have as an employer. Firstly, employees often have the option of free confidential workplace counseling programs, often titled EAP (employee assistance program). The author has utilised such services in the past and they can be great for getting a raft of strategies for dealing with the problem. The limitation of EPA programs is that they are generally only free of charge up to a set maximum amount of sessions. The EAP ‘facilitator’ can sometimes act as the go-between, between the perpetrator and or employer and the particular employee to assist with a resolution to the problem. At this stage and in fact all the way along where the bullying allegations are just that, allegations, it must be remembered that the perpetrator has a right to what is called procedural fairness so that the allegations should at some point be put to the alleged perpetrator to give them a chance to respond to the allegations.

Not only that but if the allegations are to be responded to in writing, a reasonable time should be given to the perpetrator to make those written submissions. HR departments (that is if the particular business has an HR department, which may not be the case in many if not basically all small businesses) should not be discounted out of hand. HR departments though are employed by for and therefore paid and financed by the employer but when all is said and done, if a resolution can be reached through an HR department (again, if one exists in the business) then all the better. Employers need to be most concerned about, from their own perspective at least, alleviating or removing the legal risk of a legal claim arising from an O, H & S perspective. The duty of an employer to provide and healthy and safe workplace is not delegable to a third party and it is a very strict duty so that an employer has a duty in and of themselves only, to prevent a risk to health and safety and if a risk arises to deal with it. Bullying in the workplace places the health and safety of potentially all employees at risk, not only the ‘victim’ but also sometimes, the perpetrator and also potential witnesses to the bullying as well. The author has witnessed bullying in the workplace and it is not pleasant!

Non-legal options

Other non-legal options for employees and employers to deal with workplace bullying include frank open and honest communications about what is going on with the victim, the perpetrator (it is acknowledged that the victim often finds it very difficult to discuss the situation with the perpetrator direct) and the employer and discussing the issues with counselors outside the workplace. Discussions with friends and family and perhaps with other colleagues may also be useful. Some employers have formed at the workplace an ad hoc role, person, or committee at the workplace so that anyone in the business can raise with that person or persons on a strictly confidential basis not only bullying allegations but also, if they wished, other workplace issues where confidentiality is key. The author has been in the past a person to whom confidential issues could be raised. Bullying was a common theme unfortunately at that organisation.

Legal options

As far as the legal options are concerned, an employee has the option of making an application to the Fair Work Commission for an ‘order to stop the bullying.’ What will result from that application if successful is in the form of a preventative order from the Commission, to stop the bullying from occurring any longer. It is critical to note, as this is a common misconception, that monetary compensation cannot be ordered in this forum. Implied into the fact that what is applied for is in order to stop the bullying is that there must be a likelihood, on the basis of evidence on the balance of probabilities of the bullying continuing and in addition, that the employee must be still currently employed in the organisation. So many unfair dismissals and similar cases in the Fair Work Commission where the author has acted for an employee raise the fact that they were bullied whilst employed there. But it is too late at that point to raise these allegations as the employee is no longer employed there and so the fact there was bullying is now just background facts to the matter.

Don’t just quit

Unfortunately, on a different note, it is all too common that the employee believes that they have or have had no alternative but to resign because of the bullying. This should generally (but not always) be viewed as a failure in the organisation and may give rise to a case of constructive dismissal (which is where the employee resigns but it is in law deemed to be a termination where the employee felt that they were forced by the employer’s conduct to resign.) Breach of an ‘anti-bullying order’ by the occurrence of further bullying at the workplace will often result in the employer and or the perpetrator coming back before the Commission to explain the default which can cause obviously much-added stress, time, and cost to the employer. The author has acted in quite a few ‘anti-bullying applications’ and his experience is that the process works very well, and in every case, the matter has been resolved at the mediation process which is a mandatory part of the procedure. In none of these cases has there been a necessity for the matter to come back before the Commission and the parties have been able to move on. Finally, important to note are the three critical elements of unlawful bullying are that the conduct must be repeated so that one-off instances are not sufficient, it must present a risk to occupational health and safety and it must be likely to occur again.

To finish off this article, it is worthwhile keeping in mind exactly what is unlawful workplace bullying and what is not. Unfounded allegations of workplace bullying, unfortunately, occur far too frequently. Just because someone is upset by what someone at the workplace said or did does not automatically mean bullying in terms of the legal definition has occurred. The far most common ‘defense’ to a bullying action by an employee is what is termed ‘reasonable management action.’

For example, an employer is sometimes entitled to have ‘harsh words’ with an employer in the context of performance appraisals, discussions addressing underperformance and misconduct, investigating these things, refusals of leave requests, and modifying employee duties and hours. Even swearing at or near or directed towards an employee is not on its own necessarily workplace bullying even if the employee may be upset by what has happened.

Helen Kay

If you require any assistance with your business legals or any other commercial legal issue, please do not hesitate to contact me.

P: 1300 064 707 | E: helen.kay@riselegal.com.au

Typical Legal Disclaimer!…

Unfortunately, there is never a ‘one size fits all’ formula to apply. Every situation is unique and it can be tricky to wrap your head around some areas of the law. To ensure you are setting yourself and your business up for success, it is always best to consult a legal professional with expertise in the field.

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