Bullying and harassment in the Workplace
Workplace bullying and harassment is a significant issue in the workplace. Bullying is defined as repeated humiliating, intimidating or threatening behaviour, which over time risks a person’s health and safety. It does not include reasonable management action relating to performance.
Sexual harassment continues to be a serious issue in the workplace. A 2016 survey by the Australian Bureau of Statistics found that one in two women and one in four men have experienced sexual harassment, with many incidents taking place in workplaces. In a legal sense, sexual harassment is defined as any unwelcome conduct of a sexual nature that may make the victim feel offended, humiliated or intimidated.
Employers that tolerate a culture of bullying and harassment are likely to see their employees suffer from stress, take higher amounts of sick leave and be unable to perform to their full potential. Employers also risk being found vicariously liable for psychological damage suffered, as the following cases demonstrate.
Eaton v Tri Care
This case is an example of negligence and vicarious liability regarding bullying and harassment in the workplace. Ms Eaton worked as an administration assistant at an aged care provider. She was described as having a bright personality and being positively engaged at work. This changed after the appointment of a new manager. Eaton claimed the new manager used unwelcoming body language and an aggressive tone of voice, which included yelling and making derogatory comments.
Eaton claimed damages for psychiatric injury and negligence of the employer, which caused her great distress to the point of crying and trembling whilst at work. Ultimately, Eaton resigned due to suffering from major depression and anxiety, and was assessed as being incapable of returning to work. The initial claim by Eaton for damages was dismissed at the District Court. The QLD Supreme Court – Court of Appeal found that Tri Care was vicariously liable for the actions and damage caused by the manager in the workplace.
Employers have a duty of care to ensure employees are protected from stress and damaging mistreatment that could result in a psychiatric injury.
Colin Ramon Reguero-Puente v City of Rockingham
A recent unfair dismissal case saw a building coordinator for a City Council terminated with 19 offences of misconduct, predominantly relating to an array of inappropriate text messages sent to several junior female staff. The messages were sent during and outside of working hours, with many containing unwelcome sexual innuendo or explicit photographs of him. The text messages were seen to be manipulative due to the man’s senior position in the organisation, which prompted the affected women to respond to his requests rather than ask him to stop or ignore him.
The building coordinator was given multiple warnings by the Council to cease his behaviour, however he ignored these warnings leading to his suspension and subsequent investigation and dismissal. The former employee claimed that he genuinely believed that his behaviour was both consensual and acceptable, however the Fair Work Commission found that the young women should not have to tell their supervisors that they do not want to receive provocative comments or messages both during and outside of work hours. The man claimed that his behaviour was a result of mental illness stemming from his workload and the treatment he received from his colleagues.
For the employees who were still working with the business after Mr Reguero-Puente’s dismissal, concerns were raised regarding their safety and security moving forward. The Commission considered the lack of personal responsibility shown, as well as the continued misconduct despite being warned as valid reason for the termination to be upheld.
Colwell v Sydney International Container Terminals
This case illustrates the importance of out-of-hours conduct in a work relationship. The stevedore, Luke Colwell, was dismissed after sending a pornographic video to 19 of his colleagues via Facebook Messenger. Colwell had not been rostered on to work that day and had been drinking at a pub and later at home before sending the video. Reactions from recipients of the video were mixed, including one female colleague condemning Colwell for sending the video, prompting him to post an apology onto his Facebook page. Once his employer discovered his actions he decided, in consultation with his Union, take three months leave without pay, and was later terminated due to serious and wilful misconduct.
Colwell argued at the Fair Work Commission that his employer did not have a basis for dismissal, because his actions did not take place on work premises, using work devices or during work hours. He also argued that the colleagues in question had self-selected and approved Facebook friend requests. It was however outlined by Commissioner McKenna that the core reason for the friendship network over Facebook stemmed from their employment together. Colwell’s conduct had clearly breached company values and policies. The Commissioner upheld the employee’s dismissal on this basis.
Key points to consider:
- Employers may be vicariously liable for psychological damage occurring to their employees as a result of bullying and harassment.
- A zero-tolerance to workplace bullying and harassment is recommended.
- Policies and procedures should not only be written, but also implemented by proper communication and training and consistently enforced.
- Workplace behaviour training should be conducted for all employees and managers, with regular refresher courses to reinforce rights and responsibilities.
Want to learn more about fair and unfair dismissal? Click here to download our Unfair Dismissal eBook.
