Early intervention critical in addressing bullying: lawyer
Bullying in the workplace – Despite its ‚ ≤symbolic importance’, Brodie’s Law is a ‚ ≤deeply flawed’ response to workplace bullying, according to a prominent employment and industrial lawyer who also says the issue should not be confined to the ‚ ≤realms of OHS’.
Earlier this week, Josh Bornstein, principal for Maurice Blackburn Lawyers told a legal forum in Melbourne that a new policy and legislative approach to workplace bullying is ‚ ≤overdue’, because the current system does little to afford victims with effective options for relief.
‚ ≤One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue,’ he said.
‚ ≤Confining [workplace bullying] to the realms of OHS hasn’t worked and won’t work.’
Brodie’s Law ‚ Æ ‚ ≤symbolic, but flawed’
Bornstein explained that Australia has, ‚ ≤for too long’, accepted a ‚ ≤second-rate system’ wherein the regulation and policing of this issue is entrusted to state-based OHS regulators, which are ‚ ≤simply not resourced sufficiently to manage the volume of workplace bullying complaints [they receive]’.
He also took aim at the Crimes Amendment (Bullying) Act 2011, dubbed ‚ ≤Brodie’s Law’, which took effect in Victoria in June 2011. The legislation extends existing criminal laws that deal with ‚ ≤stalking’ under the Crimes Act 1958 so that they apply to cases of serious bullying. This means that people can face up to ten years jail in ‚ ≤extremely serious’ cases of workplace bullying.
Brodie’s Law was prompted by the tragic 2006 suicide of 19-year-old Melbourne waitress Brodie Panlock, who was relentlessly bullied during work hours.
Bornstein said that while Brodie’s Law is ‚ ≤strong as a symbol’ those affected by workplace bullying need ‚ ≤better, earlier protection’.
‚ ≤Brodie’s law is not a bullying law but a stalking law,’ he said.
‚ ≤[I]n reality, it’s useless in about 95 per cent of workplace bullying cases. Even if it was amended to change that, it is deeply flawed. To give but one illustration of its flaws, imagine you are an employer and an employee turns up to work on Monday brandishing an intervention order prohibiting another employee from going within 100 metres of him or her.’
Criminalisation is ‚ ≤not a workable model’
Bornstein disagreed with calls for Brodie’s Law to be adopted nationally. He also rejected the use of criminal law to address workplace bullying.
‚ ≤It is not a workable model,’ he said.
‚ ≤Criminal law should only intrude into the workplace in extreme situations. Most bullying cases are not criminal matters.’
‚ ≤The criminalisation of workplace bullying is a misguided and ineffective way to address workplace bullying and provide victims with remedies.’
Early intervention, education and hard work . . .
Bornstein said that workplace bullying should be addressed by national workplace laws, which establish a ‚ ≤user friendly, proactive system’; wherein, victims can take a complaint to a tribunal or court ‚ ≤well before the situation has escalated to the point of damage to an employee’s health’.
‚ ≤Early intervention is often critical,’ he said.
‚ ≤Amending the Fair Work Act to allow this to occur would be a step in the right direction.’
Furthermore, Bornstein said that an investment in an educational campaign about workplace bullying, together with legal reform, would ‚ ≤reap a huge dividend by saving millions in lost productivity, healthcare costs and social welfare payments’.
‚ ≤It would enhance managerial skills and improve the quality of our work environment,’ he said.
Also, Bornstein advised employers that implementing codes of conduct and policies is not the solution.
‚ ≤The era of the workplace policy or code of conduct being the key to managing workplace culture is well and truly over,’ he said.
‚ ≤It is one thing for employers to purchase a vanilla workplace policy off the internet. It’s altogether another to actually manage workplace culture. The gulf between culture and policy can and is often significant. Bridging that gulf requires sustained hard work and strong management.’
During the forum, Bornstein debunked a number of myths about workplace bullying, including the belief that bullying is ‚ ≤unlawful and actionable’.
‚ ≤This assumption is wrong,’ he said.
‚ ≤Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes bullying. The lack of a law that explicitly deals with workplace bullying is quite anomalous.’
Another myth was that workplace bullying is a ‚ ≤misguided reference to a personality conflict’.
‚ ≤It has become fashionable by some to claim that bullying allegations are unfounded and simply the result of a personality conflict or relationship breakdown,’ he said.
‚ ≤[T]his is a myth generated principally by jaded OH&S regulators and bottom-feeding consultants seeking to drum up work.’
‚ ≤Mental health damage is often invisible to the eye. Bullying behaviours are often subtle or Machiavellian and an accomplished bully can often construct a defence of plausible deniability.’
He also said the view that there is no definition of workplace bullying is wrong.
‚ ≤Most OH&S regulators use working definitions of bullying that are remarkably similar,’ he said.
‚ ≤The Draft Code of Practice released on Preventing and Responding to Workplace Bullying, Safe Work Australia defined the term to mean repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety‚ π.’