Employment and Migration Blog

Tag: workplace bullying

  • Unfriending = unlawful?
    Posted by Stephen Booth, Lisa Qiu on 1 Oct 2015
    Sometimes it’s difficult to ignore a friend request from a work colleague. Once you’ve accepted, should you block or unfriend? A recent decision handed down by the Fair Work Commission may cause you to rethink your next move.
  • New bullying jurisdiction? I can use that!
    Posted by Stephen Booth on 14 Feb 2014
    There’s been a fairly quick take-up of the new Fair Work Commission jurisdiction to deal with applications for “stop bullying” orders that came into effect 1 January 2014. The FWC has reported that it had 44 applications filed in January: less than the 70 per month forecast, but still a tidy number for a summer holiday month. Much remains to be seen about how the FWC applies its triage role in sifting out applications with substance from those without, or which are outside the jurisdiction. The Federal Government will be watching, as Senator Abetz has indicated that he would be seeing how the triage works before deciding on whether to revise the scope of the jurisdiction.
  • Workplace bullying in legal terms
    Posted by Stephen Booth on 7 Sep 2012
    A prominent Melbourne employment lawyer, Josh Bornstein, has suggested that we need to rethink how we deal with workplace bullying in legal terms. He says, surely correctly, that the “Brodie’s law” approach, criminalising bullying as akin to stalking, is more symbolic (and legislative “feel good”) than of real benefit, in the vast majority of cases. And he argues that we will never make headway against workplace bullying while it is perceived as a safety issue, essentially because an OH&S focus addresses processes and implementation, and in rare cases penalties for a business that handles a bullying issue very badly, but there is generally no private right of action. But would a much broader right to make a claim about bullying be suitably calibrated to address genuine cases, or would it open floodgates to many cases that are more about general disgruntlement or workplace politics than seriously inappropriate behaviour? As we’ve seen with unfair dismissals, despite the laudable goal to avoid imperatives for employers to pay “go away money”, the simple fact is that wherever there will be costs in money and time to defend claims, money will be paid to make them go away, even in cases of low merit.  And defining bullying for the purposes of a right to make a damages claim would be a particularly perilous minefield. And what that approach ignores is that real cases of bullying generally involve deep-seated cultural issues and behavioural traits of the workplaces, bully and victim.  Might we not achieve more by focussing directly on those?  Of course, in the short and medium term, that will work in decent workplaces but not reach the toxic ones.  And discrimination legislation has certainly permeated everyone’s consciousness because of the risk of claims.  A right of action for bullying might do the same, but at what cost?