Separovic Injury Lawyers Blog

Workplace bullying and workers' compensation stress claims.

Posted by Tony Separovic on 15 November 2019 17:02:26 AWST
Tony Separovic

Instances of workplace bullying have been increasing over time.

Instances of bullying in the workplace have risen dramatically in Australia in recent times. In 2012, in response to mounting community concern, the Australian Government established a parliamentary inquiry into workplace bullying. The findings of the inquiry led to the creation of a specific bullying jurisdiction within the Fair Work Commission. Disturbingly, Safe Work Australia data confirms that workplace injuries related to bullying and harassment have nearly doubled in Australia over the past decade.


It is now not uncommon to see contemporary news stories reporting on serious instances of workplace bullying and its impact on workers, their colleagues and their families. Here, for example, in early November 2019 ABC News published a worrying report on workplace bullying and its impact on the thousands of Australian’s that experience it on a daily basis. The ABC News story highlights the torrid experience of a worker called Krystal. Krystal was a hardworking and confident mother of two who thought that her career prospects were gathering pace after she took a new job with a national recruitment agency. The reality was very different and after months of bullying from a senior employee, Krystal was a broken version of her former self. Krystal suffered anxiety, stress and insomnia and began to withdraw from her family, friends and colleagues. Worst of all when she reported the bullying to the company’s human resources department it was brushed aside as a non-issue. At that point Krystal simply did not know where to turn.


Over recent years, various extreme examples of workplace bullying have come to light and have often involved young, inexperienced and particularly vulnerable workers. Some of these stories have focused on the experience of apprentices, backpackers, seasonal workers and workers in Australia on work related visas. Unfortunately workplace bullying is not a new issue and has been found to occur regardless of the industry or the size of the business that the worker finds themselves in.    


WorkCover WA’s Annual Statistical Report (2014/2015 to 2017/2018) confirms that number of mental stress related workers’ compensation claims, involving lost time, has risen steadily over the period studied. This West Australian data, along with the data from Safe Work Australia, confirms that the occurrence of workplace bullying is growing and is increasingly resulting in victims making workers’ compensation claims.              


How is bullying defined in Australian workplaces?

Safe Work Australia borrows heavily from the Fair Work Act 2009 (Cth) and defines workplace bullying as “repeated and unreasonable behavior directed towards a worker or group of workers that creates a risk to health and safety”.

Section 789FD(1) of the Fair Work Act 2009 (Cth) explains that a worker is bullied at work if:

(a)  while the worker is at work in a constitutionally‑covered business:

(i)  an individual; or

(ii)  a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)  that behavior creates a risk to health and safety.


OK, so what exactly is bullying?

Bullying in the workplace can occur through verbal, psychological, physical, social and indirect forms of abuse or behavior. While bullies are often employers, managers or employees in positions of some seniority, they can also be employees at or below the victim’s level within the workplace hierarchy. Bullying behavior can also be perpetrated by the clients that an organisation services, by vendors that supply an organisation or by other contractors or third parties that employees of an organisation may work or interact with.    

Worker suffering from bullying thinking about making a workers compensation claim Separovic Injury Lawyers

Bullying can occur in any type of work place including businesses that sell products or provide services, small to medium enterprises, heavy industry, health services, not for profit organisations or government departments. Not surprisingly, instances of workplace bullying are reported by all types of employees including casual, part-time, permanent, management and executive level employees.         


Sometimes bullies use very obvious and outspoken behavior. At other times they can be very subtle, discrete or cunning. This can sometimes make bullying very difficult to identify and can add to the victim’s sense of unease and mental discomfort. Often workers suffering from bullying are simply not aware of what behaviors are acceptable in the workplace and what are not. Here, providing workers with clear examples of bullying can often be very helpful in educating them as to what actions or behaviors may, or may not, be appropriate.   

Some common examples of bullying can include:

  • abusive or offensive language or comments including swearing or yelling at an employee;
  • aggressive and intimidating behavior including threat making, posturing or any physical action;  
  • belittling, degrading or humiliating comments, actions or insinuation;
  • practical jokes, initiations, dares or game playing; or
  • unjustified criticism, complaints or comments.


Further to this, the Australian Human Rights Commission provides a very useful fact sheet on workplace bullying. This information includes a practical and very relate-able list of examples bullying behavior: 

  • repeated hurtful remarks or attacks, or making fun of your work or you as a person (including your family, sex, sexuality, gender identity, race or culture, education or economic background);  
  • sexual harassment, particularly stuff like unwelcome touching and sexually explicit comments and requests that make you uncomfortable; 
  • excluding you or stopping you from working with people or taking part in activities that relates to your work;
  • playing mind games, ganging up on you, or other types of psychological harassment; 
  • intimidation (making you feel less important and undervalued);  
  • giving you pointless tasks that have nothing to do with your job;  
  • giving you impossible jobs that can't be done in the given time or with the resources provided; 
  • deliberately changing your work hours or schedule to make it difficult for you; 
  • deliberately holding back information you need for getting your work done properly;
  • pushing, shoving, tripping, grabbing you in the workplace; 
  • attacking or threatening with equipment, knives, guns, clubs or any other type of object that can be turned into a weapon; or 
  • initiation or hazing - where you are made to do humiliating or inappropriate things in order to be accepted as part of the team.  


What are behaviors or actions that can be mistaken for workplace bullying?

Put simply, not all behaviors or actions that make an employee feel upset, emotional, stressed or undervalued can be neatly classified as workplace bullying.    


It is sometimes said that managing people and organisations is one of the most challenging work related tasks. Managers and supervisors are regularly required to report and feedback on employee productivity, performance and development. Modern day management requires managers to constantly delegate, follow up on and appraise the quality and timeliness of work completed by employees. Where managers and supervisors carry out performance management tasks in a reasonable, structured and constructive manner, such actions should not be regarded as workplace bullying.


Where particular performance management action is required, managers and supervisors need to ensure that feedback and reporting to employees is generally helpful and encouraging. Here, corrective action should not be punitive but supportive and focus on positives, negatives and especially hone in on future goals.         


Disagreements, differences of opinion or particular philosophical, political or moral objections do not generally constitute workplace bullying. Here, if the parties involved cannot agree to disagree or if the conflict is not carefully managed they can develop, overtime, into situations that could constitute workplace bullying.      


In particular circumstances, some behavior may not be deemed as workplace bullying but may be unacceptable according to other applicable legislation. Here, legislation dealing with equal opportunity, workplace relations, human rights and anti-discrimination law may apply and provide protections to the worker. These areas of the law can be complex and difficult for a lay person to understand. In the event that you need legal assistance within these types of legal matters Separovic Injury Lawyers may be able to refer you to a relevant practitioner within our trusted network of advisers.      


Is cyber-bullying the same as other bullying?

The instances of cyber-bullying reported in Australian workplaces has risen dramatically in recent years. Not surprisingly this increase in cyber-bullying has risen in step with the now ubiquitous presence and use of smart phones, portable devices, social media and the internet for work.   


Cyber-bullying involves the same type of unreasonable and harmful behaviour as traditional bullying but it is perpetrated by electronic means. 


Cyber-bullies can use a large range of electronic devices, systems or forums to harass their victims. The range of material that a cyber-bully can use is also broad and can include words, photos, video or images. Common methods of cyber-bullying include using:

  • facetime, email, text, fax and instant messaging services;
  • online forums, chat rooms and discussion groups;
  • social media applications, dating and review websites;
  • photo, video and document sharing applications; and
  • blogs, websites and notice boards.


Aware of the increasing impact of cyber-bullying, the Australian government has taken a proactive approach in an effort to combat it. This has led to the establishment of a federal Office of eSafety, an eSafety Commissioner and the very helpful eSafety website. 


Is it possible to make a workers’ compensation stress claim in regards to bullying?

To make a successful workers’ compensation stress claim in regards to bullying it will need to be established that you are suffering a medical condition that is classified by workers' compensation legislation as an 'illness' or 'injury'. While the legislation is rather complex in this area, if you have attended a counselor, GP, psychologist or psychiatrist and reported that bullying suffered during the course of your employment has caused stress, anxiety or other mental health issues, you may be able to make a claim.


In some cases it can be difficult for a worker who has suffered from bullying to understand that the workers’ compensation system must identify that the worker has suffered an ‘illness’ or ‘injury’. Here, if bullying has caused a worker to experience stress, anxiety or some other mental health related symptom then a workers’ compensation claim could be made.      


If you are being bullied at work and can’t go on, what should you do?

At a workplace level there are a range of strategies that you can use to hopefully manage and better deal with bullying. These can include:

  • Seeking medical assistance, reporting any symptoms like stress or anxiety and gaining treatment to assist in coping with these symptoms;
  • Ensuring that you are as informed as possible about the bullying and complaint making policies and procedures in your workplace;   
  • Keep records and carefully document all of the instances of bullying. Here, it is important to note down dates, times, actions and the particular people that may have witnessed the bullying taking place. You should also carefully record how you reacted to the bullying, how you tried to stop it and how it made you feel;
  • Escalate the issue at the workplace level. Here, it is important to carefully follow the particular complaint or dispute resolution processes that your workplace uses. This could involve reporting the bullying to a supervisor or manager, a health and safety officer or the human resources department; and
  • Getting help: If the bullying is violent, overly aggressive or threatening it may be a criminal act and you should call the police on 000;
  • Getting help: If the bullying involves discrimination according to your race, sex, sexual orientation, age, disability, religion, political views or pregnancy you can call the Australian Human Rights Commission on 1300 656 419; or
  • Getting help: The Commonwealth Fair Work Ombudsman can also provide you with a great deal of information about workplace rights and protections for workers on 131 394.                      


If you have been subjected to bullying in the workplace and you feel that you are not able to continue please do not delay and call Separovic Injury Lawyers to obtain free, no obligation legal advice.

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Recent Australian academic research into bullying and its impact on employees.

Given the recent media attention workplace bullying has received it is not surprising that a number of Australian academics have produced research on the issue. Here, for example, Allison and Bastiampillai in 2016, argued that senior managers and executives should be trained to lead organisational anti-bullying programs and that their key performance indicators should assess their effectiveness in managing bullying. In their detailed 2017 study into Australian workplace bullying laws, O’Rourke and Antioch, suggest that responses to workplace bullying must be, in the first instance, preventative, however, in extreme cases, reactive measures are required and should involve criminal sanctions including imprisonment and fines. In her 2015 thesis on the consequences of cyber-bullying in the Australian public sector, Lawrence, notes that cyber-bullying has the potential to become a semi-clandestine, unethical and unprincipled underground where aggressive and dysfunctional workplace behavior could flourish. Lawrence advocates for a broad range of reforms including training, guidelines and processes, designed for Australian workplaces, that clearly mandate zero tolerance for all forms of workplace bullying.         


How can a specialist plaintiff injury lawyer assist you.

In line with recent trends, Separovic Injury Lawyers has also noticed a general increase in the number of workers’ compensation stress claims where workplace bullying has been a significant cause of distress for workers. With a team of caring, compassionate and down to earth legal professionals, Separovic Injury Lawyers will ensure that you are listened to and given the support you need. We have provided expert legal assistance to workers that have suffered through horrible bullying situations and it is extremely satisfying securing a future for these injured victims.           

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