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Prevention of Workplace Bullying

A tool for change to the legal workplace

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

Overview
Identifying bullying
Examples of bullying behaviour in the legal workplace
Cost and Effects of Bullying
Survey Results
Legislation and relevant case law
Resources - what you can do to address bullying
behaviour
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

Introduction
This presentation is an educative tool for employers and
employees in the legal workplace. The Law Society recognises
the importance of addressing bullying issues for the profession
as a whole.
When reading this presentation, you will notice that detailed
notes are appended to a number of slides. These notes provide
more detailed information on bullying issues for your reference.
Law Society of New South Wales
2004

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

Introduction
Workplace bullying has become the object of ever-increasing
attention over the past few years.
Research indicates that workplace bullying is widespread,
including within the NSW legal profession.
In fact,
statistically, bullying is more prevalent than harassment,
(using the definition of harassment under anti-discrimination
law).
More often than not, up to half of any particular workforce
are likely to claim they have been bullied in relation to their
work or workplace, whereas only about one in five will claim
they have been harassed.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

What is bullying
To date there is no NSW statutory definition of bullying.
The Law Society of NSW has adopted the following definition of
bullying:
Unreasonable and inappropriate workplace behaviour
includes bullying, which comprises behaviour that
intimidates, offends, degrades, insults or humiliates an
employee, possibly in front of co-workers, clients or
customers and which includes physical or psychological
behaviour.
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The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

What is bullying
Bullying can include behaviour that intimidates,
offends, degrades, insults and humiliates a person.
Bullying can include physical or psychological
behaviour.
There does not need to be any intention.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

Harassment
Many potential claims could be commenced under the existing antidiscrimination legislation, including harassment.
Harassment occurs when a person engages in unwelcome or
uninvited conduct that targets a person because of a personal
characteristic, or focuses on a personal characteristic such as race,
gender, disability, sexuality or age and which causes another with
that personal characteristic to feel offended, embarrassed,
humiliated or intimidated where a reasonable person would, in the
circumstances, anticipate that the person would feel that way.
For further discussion on harassment see the notes appended below.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

Examples of bullying behaviour


Bullying can come in many forms. Some actual examples of legal
workplace bullying include*:
Aggressive or frightening behaviour such as swearing, shouting,
intimidation or threatening violence.
Threats to make, or actively making, someones work or home
life difficult e.g. constantly calling the person at home late at
night and on weekends, spreading false accusations about a
person with the result that they are ostracised.
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* Examples provided by NSW Young Lawyers
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

Examples of bullying behaviour


Threats of, or actual assault against someone, or damaging or
threatening to damage someones belongings e.g. shoving the
person, pulling the persons hair.
Rude, belittling or sarcastic comments e.g. youre hopeless,
shes on her way out.
Abusive, belittling or intimidating phone calls, emails, notes etc.
Baiting or unreasonable teasing e.g. singing derogatory songs
and inserting the persons name, cruel nicknames.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

Examples of bullying behaviour


Nasty practical jokes.
Publicly belittling someones opinions, or dismissing that
persons contribution without good reason, including in front of
clients and work colleagues.
Standing in someones way, or deliberately blocking his/her path
in an intimidating manner.
Deliberate and unreasonable isolation or exclusion from work
discussions, communication or other work-related activities e.g.
deliberately withholding work flow so that person cannot make
firm budget.
Ignoring the person.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

10

Examples of bullying behaviour


Abuse of management or supervisory power such as:
excessive and unreasonable work scrutiny;
inappropriate or unreasonable criticism of, or punishment
about, someones work or behaviour;
constantly and inappropriately changing and/or setting
impossible deadlines, tasks or targets;
inappropriate or unreasonable blocking of promotion,
training, development or other work opportunities;
branding as a troublemaker a person who raises legitimate
workplace grievances, and taking no action to address the
grievance.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

11

What is not bullying


Setting reasonable workplace goals and standards
including work deadline bearing in mind lawyers
professional responsibilities to act in the best interests
of clients, but to do so without jeopardising the health or
safety of any employee or other work colleague.
Reasonable supervisory practices.
Reasonable work performance assessment, counseling
and disciplinary practices.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

12

What is not bullying


Fair and legitimate exhortation by management to
encourage or urge staff members to give of their
best.
Occasional, one-off incidents e.g. losing your temper,
shouting or swearing.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

13

Good Management v Bullying


GOOD MANAGEMENT

BULLYING

Decisive

Inconsistent, random, impulsive

Accepts responsibility

Abdicates responsibility

Shares credit

Plagiarises, takes all the credit

Acknowledges failings

Denies failings, always blames others

Consistent

Poor interpersonal skills

Confident

Exclusive self-interest

Is contemptuous of clients

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

14

Good management v Bullying


GOOD MANAGEMENT

BULLYING

Fair, treats all equally

Singles people out, shows favoritism

Seeks and retains people more


knowledgeable and experienced
than self

Withholds information, releases


selectively, uses information as a
weapon

Values others

Unable to value, constantly devalues


others

Includes everyone

Includes and excludes people


selectively

Leads by example

Dominates, sets a poor example

Truthful

Insecure, arrogant

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

15

Workplace Costs of Bullying


Direct Costs:

Indirect Costs:

Absenteeism

Cost of time spent on the issue

Staff Turnover

Loss in productivity

Litigation

Industrial problems

Increased work accident rate and/


or work error rate

Negative publicity for


organisation

Rehabilitation costs

Increased workers compensation


premiums

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The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

16

Productivity Cost of Bullying


Griffith University estimates workplace bullying costs
Australian business between $17 and $36 billion per
year (2001)

For further discussion on the cost of bullying see the notes


appended below.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

17

Direct Effects of Bullying


The direct effects to the workplace can include:

Reduced efficiency and productivity.


Unsafe work environment.
Increased absenteeism.
Poor morale.
Increased workers compensation claims.
Possibility of civil action.
Poor employee motivation.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

18

Indirect Effects of Bullying


The indirect physical and psychological effects of workplace
bullying on employees can include:

High stress levels, anxiety, sleep disturbances.

Ill health, severe tiredness, panic attacks, impaired ability to


make decisions.

Incapacity to work, loss of self-confidence and self-esteem,


feelings of social isolation at work, reduced output and
performance.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

19

The Law Society of NSW 2003 Remuneration


and Work Conditions Survey

Participants who have experienced bullying/intimidation,


discrimination or harassment
30
24

25
20

22

18

16

16
12

% 15

Male

14

11

10

Female
Total

5
0
Bullying/Intimidation

Discrimination

Harassment

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The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

20

The Law Society of NSW 2003 Remuneration


and Work Conditions Survey
Frequency of harassment, discrimination or
bullying
50
40
30

Harassment

Discrimination

20

Bullying/Intimidation

10
0

Once

Infrequently

Frequently

Continuously

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

21

The Law Society of NSW 2003 Remuneration


and Work Conditions Survey
Experience of Intimidation and Bullying
Intimidation/Bullying

Male %

Female %

Total %

Junior status

58.7

51.0

53.5

Being new to the job

30.4

37.5

35.2

Gender

10.9

40.6

31.0

Age

15.2

14.6

14.8

Race

2.2

6.3

4.9

7.3

4.9

2.2

5.2

4.2

2.1

1.4

Sexual Preference

4.3

1.4

Disability

2.2

0.7

Other

15.2

20.8

19.0

Marital Status
Carers responsibility
Pregnancy

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

22

Relevant Legislation
s. 8 Occupational Health and Safety Act 2000
The employer has an obligation to ensure the health and safety of all
employees. Workplace bullying may harm the health and safety of
employees, therefore the employers obligations extend to ensuring
that workplace bullying is prevented or stopped.
This includes following instructions given by the employer relating to
the health and safety aspects of workplace bullying e.g. reporting
workplace bullying.
The employee also has an obligation to take reasonable care at work.
For further discussion on relevant legislation see the notes appended
below
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The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

23

Relevant Legislation
Anti-Discrimination Legislation
Bullying may be unlawful where it involves harassment
or discrimination under the following Acts:

Anti-Discrimination Act 1977 (NSW)


Sex Discrimination Act 1984 (Commonwealth)
Racial Discrimination Act 1975 (Commonwealth)
Disability Discrimination Act 1992 (Commonwealth)
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

24

Relevant Legislation
Industrial Relations legislation
If bullying is a factor in the termination of your
employment you may be entitled to lodge a claim under
industrial relations legislation:
Industrial Relations Act 1996 (NSW)
Workplace Relations Act 1996 (Commonwealth)

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

25

Case Law on bullying


Bullying claims are often dealt with before Courts and Tribunals as
unfair dismissal claims, discrimination claims, breaches of statutory
duty or negligence actions and they have been successfully made
throughout Australia under almost all of the jurisdictions.
The following is a case dealing with the employers obligation to
prevent bullying:
WorkCover v M.A. Coleman Joinery (NSW) Pty Ltd & Ors
Chief Industrial Magistrates Court, 5 May 2004
For discussion of this case see the notes appended below.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

26

Case Law on bullying


These are cases in which bullying was an element:
Neal v Shaw McDonald Pty Ltd & Anor [2002] NSWIR Comm 298
(involving a law firm)
Dillon v Arnotts Biscuits Ltd, AIRC, 10 September 1997, (Print
4843)
Bann v Sunshine Coast Newspaper Company Pty Ltd, AIRC, 30
July 2003, (U2003/893)
For discussion of these cases, and other cases relevant to bullying, see the
notes appended below.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

27

How can this issue be better


addressed?
Development and implementation of clear workplace policies,
guidelines and practices that:

Define bullying and the types of behaviour which constitutes


bullying.

Clearly state that bullying is inappropriate and will not be


tolerated.

Sets out the processes for complaining of bullying and dealing


with a complaint of bullying.
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The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

28

How can this issue be better


addressed?
Adopt the Law Society recommended EO Policy.
Encourage employees who experience or witness bullying to
report.
Include a statement of risks to the organisation and individuals.
Provide for Education and awareness raising programs
including: induction and management development.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

29

How can you address bullying


behaviour
There are both formal and informal ways an employee can address
workplace bullying.
Informal
Approaching an appropriate person
You should approach the appropriate person in the firm HR,
senior partner, a partner who you feel comfortable approaching, or
alternatively the Law Society or WorkCover.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

30

How can you address bullying


behaviour
Keep a diary of workplace bullying
Bullying can sometimes be difficult to define and to prove. It is
therefore important to keep a diary of events, recording incidents, in
as much detail as possible and the names and addresses of people
willing to support your claims.
This diary can be used at a later date to assist you with proving
your case and may be seen as valid evidence in a tribunal or a
court of law.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

31

How you can address bullying


behaviour
Formal
Complaint to the Anti-Discrimination Board (NSW)
and Human Rights and Equal Opportunity
Commission.
Lodging a claim with WorkCover NSW.
Application to the Industrial Relations Commission.
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

32

What the employer should do


There are bound to be occasional differences of opinion,
conflicts and problems in working relations these are part of
working life. Similarly, some people will excuse bullying
behaviour as a necessary means of motivating employees in
todays highly competitive commercial environment. But if the
behaviour is unreasonable and offends or harms any person,
then this is workplace bullying and must be stopped.
It makes good business sense to make sure that bullying at
work is prevented, or identified and controlled. Demonstrated
commitment by management is essential if workplace bullying is
to be stopped.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

33

What the employer should do


Encourage employees to come forward
You should encourage employees to come forward on a confidential
basis if they are being bullied and protect them from retaliation when
they do. Workplace bullying can remain largely unreported for various
reasons including:

People who are bullied may lack the confidence to speak up, or feel
too intimidated or embarrassed to complain.
People may feel a sense of powerlessness due to their position in the
organisation.
There may be cultural constraints that prevent people from speaking
up.
People may be unaware of their rights or established procedures at
the workplace
People may be prone to give in to peer pressure
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

34

What the employer should do


Contact Person
If possible you should appoint a contact person for workplace
bullying and make all employees aware of who that person is.
Procedure
You should develop a procedure for dealing with workplace bullying
and make all employees aware of it. The procedure, which could be
incorporated into existing grievance procedures, should:

be written in plain English


be fair and equitable
ensure the principles of natural justice are upheld
ensure privacy and confidentiality
be aimed at resolving the problem rapidly
The Law Society of New South Wales 2004
With the assistance of the NSW Attorney Generals Department

35

Resources for the legal workplace


Lawyers Assistance Programme.
LawCare Free counselling service offering professional advice.
WorkCover NSW lodging a WorkCover claim.
Consult the Manager of your Human Resources Department
regarding grievance policies and procedures.
For employers who are the subject of a complaint you can
consult the Law Societys Senior Solicitor Scheme.
For more detailed information on these services and contact details
please refer to the notes appended below.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

36

Acknowledgements
The Law Society of New South Wales would like to acknowledge:
Members of the Legal Workplace Committee 2004
Members of the Equal Employment Opportunity Committee 2003
The NSW Attorney Generals Department
NSW Young Lawyers
for their valuable contribution to this presentation.

The Law Society of New South Wales 2004


With the assistance of the NSW Attorney Generals Department

37