Workplace bullying in legal terms
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?