After Panlock

A 36 page Centre for Employment & Labour Relations Law working paper by Caroline Kelly on 'The problem of workplace bullying and the difficulties of legal redress: an Australian perspective' [PDF] considers physical and psychological abuse in commercial and non-commercial environments. That abuse was analysed in a paper by Patricia Easteal at last week's Justice Connections conference.

Kelly comments that -

there has been an increasing recognition of workplace bullying as a serious issue both internationally and within Australia. Research clearly indicates its disturbing prevalence in the modern workplace and, moreover, illuminates the burdensome pecuniary and non-pecuniary costs of workplace bullying for the victim, the workplace and the wider community.

Presently there are various legal avenues that may be available to individuals who are the targets of workplace bullying. At common law, workplace bullying may give rise to a number of actions both in tort and contract. Under statute, targets of workplace bullying may be able to pursue legal redress pursuant to occupational health and safety legislation, anti-discrimination legislation or workers’ compensation legislation. In addition to this, in certain circumstances, targets of bullying in the workplace may also seek recourse through the Fair Work Act 2009 (Cth) if they can demonstrate the breach of an enterprise agreement or modern award, unfair dismissal or adverse action.

She argues that -

it is apparent that these avenues may prove inadequate or unavailable for many victims of workplace bullying; where some are highly limited in their application, others may give rise to evidentiary problems as well as great cost and uncertainty. Though a wide variety of avenues of legal redress exist, none target workplace bullying as a legally cognisable harm in itself. Both individually and collectively, it will be contended that these avenues ultimately fail to address this serious issue and that, as a result, the legal landscape that confronts victims of workplace bullying is fragmented and inaccessible, with a number of substantial lacunae. To further demonstrate this point, a case study which is representative of both the nature of workplace bullying itself, and the difficulties of pursuing legal redress in its wake, will be examined.

What is the solution? Kelly suggests that "legal reform is necessary to address this issue" -

Based, in part, on specific legislative initiatives that have been implemented in countries such France and Belgium, this paper will propose a new, targeted statutory regime which seeks, through civil means, to name, proscribe and prevent workplace bullying in specific terms. The proposed legislation seeks to tackle workplace bullying on an individual level, through the proscription of workplace bullying behaviours, and on an organisational level, through the imposition of new obligations upon the employer to provide a workplace free from bullying. The enactment of such legislation under the umbrella of the Fair Work Act would enliven the complaint and compliance mechanisms of both the courts and the regulatory agencies of the Fair Work System. The proposed legislation would therefore tackle the problem of workplace bullying systematically and comprehensively, operating in both a preventive and remedial capacity. Such an approach, this paper will argue, is fundamental in counteracting the cultural normalisation of bullying in Australian workplaces.