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Australian bullying law
This page outlines the shape of Australian law about bullying.
It covers -
The following pages discuss specific cases that illustrate
that law, highlight damages awards and identify some landmarks
in Australian bullying litigation.
introduction
As indicated in preceding pages, the conceptualisation
and acceptability of bullying in Australian law has varied
significantly over time: what was considered in the 1850s,
1900s or 1950s to be unremarkable is now often penalised.
Legal frameworks regarding bullying are diverse. There
is no single national anti-bullying statute
and no definitive nationally-acceptable legal characterisation
of what constitutes bullying. The federal nature of law
in Australia means that recognition of bullying varies
from jurisdiction to jurisdiction. Targets of bullying
accordingly rely on a range of statute and common law
in dealing with the problem.
Legal responses to bullying have essentially taken three
forms.
The first is action by the state, acting on behalf of
targets and the community in addressing egregious abuses
(primarily under criminal law).
That action is generally punitive and provides little
or no compensation for targets. It may punish perpetrators
and deter future offenders buy does not necessarily provide
any compensation for suffering experienced by the target
and his/her associates.
The second response is action by targets, for example
suing the perpetrators of bullying in order to stop the
particular offence, gain some compensation for suffering
and send a signal to potential offenders.
The third response is articulation of industry codes,
best practice statements or statements of principle, such
as the WorkSafe Western Australia 2006 Code of Practice:
Violence, Aggression and Bullying at Work and the
WorkSafe Victoria 2005 Guide to Managing OHS in Community
Services.
In practice those statements may be ignored by perpetrators
and by the employers of perpetrators (commitment by the
Australian Defence Force to recurrent aspirational statements
is questionable). However, they are important as a mechanism
for ensuring that organisations are aware that bullying
in the workplace or schools is unacceptable. They may
also be tied to statutory insurance schemes, with some
workplace insurance not covering organisations that have
failed to protect employees under occupational health
& safety legislation.
remedies
Legal remedies in Australia have included action under
-
- Anti-Discrimination
Legislation
-
Common Law (eg for physical and/or psychological injury)
-
Constructive Dismissal aspect of Industrial Relations
Law
-
Occupational Health & Safety Law
- Workers
Compensation schemes
-
Criminal Law
Those
remedies reflect expectations about individual responsibilities
and restrictions on things such as assault and workplace
discrimination. Sodomising a cadet as part of military
hazing, setting fire to an apprentice as part of workplace
initiation or leaving pork chops in a Muslim colleague's
locker is frowned on; physical injury may be rewarded
by criminal sanctions against the perpetrator. The bullying
that occurs among university academics and in the professions
may simply go unreported and be accepted as appropriate
industrial discipline aka professional practice.
They also reflect expectations about duties of care and
recognition that employers may be in a position to prevent
particular abuses or track malpractice (for example articulate
and implement a policy that prohibits use of a corporate
network for sending/receiving obscene, defamatory or threatening
content). Notions of teacher and employer responsibility
are evident in New South Wales v Lapore; Samin v Queensland;
Rich v Queensland [2003] HCA 4.
Remedies are inevitably an area of disagreement in Australian
law.
One reason is that the scale of compensation for many
offences (and penalties on the perpetrators of those offences)
is low. Some targets will accordingly seek to use tort
law (particularly regarding physical and psychological
injury) rather than Commonwealth or state/territory anti-discrimination
law, which in practice is somewhat toothless.
Another reason is the cost of personal litigation in Australia.
As mentioned elsewhere in this note, it is likely that
some targets have been deterred by the financial cost
(solicitors, barristers, expert witnesses) and emotional
cost (time, stress) associated with taking perpetrators
and bystanders to court. That cost is particularly significant
if any compensation awarded turns out to be lower than
the target's legal fees.
Not all litigation is successful. In the UK, for example,
Becky Walker was unsuccesful in action against Derby County
Council, being awarded to ordered to pay the Council's
costs (estimated at £30,000). The judge in that
case revealed that if she had won she would only have
been awarded £1,250 ... far less than her own costs,
which would have been upwards of £15,000.
discrimination law
The Commonwealth and state/territory governments have
established a range of statutes regarding discrimination
in the workplace and other environments, reflecting expectations
about human rights.
Those statutes recognise that some discrimination is legal
(eg blind people and their guide dogs cannot pilot passenger
aircraft). They also seek to prevent and punish illegal
discrimination, ie discrimination in employment, finance,
access to facilities and so forth based inappropriately
on attributes such as gender, sexual or religious affinity,
age and ethnicity.
Courts have acknowledged that bullying may embody discrimination,
with someone for example being targeted on the basis of
faith, ethnicity or identity as a GLBT
person. Targets can thus potentially deploy discrimination
law to address bullying, typically through a mediation
process in the first instance and thereafter through a
court.
Courts have also acknowledged that an organisation's response
to bullying - in particular a failure to respond - may
be subject to discrimination law. One example is FP
and FQ on behalf of FR v Department of Education &
Training; FP v Department of Education & Training
[2003] NSWADT 68 (17 April 2003).
Primers include Discrimination Law & Practice
(Leichhardt: Federation Press 2004) by Chris Ronalds &
Rachel Pepper. Other works are highlighted here.
workplace safety law
State/territory 'workplace safety' or 'occupational health
& safety' (OH&S) law covers relationships in the
workplace, including those in factories, educational institutions
and professions.
It typically imposes a duty on employers to ensure the
health, safety and welfare at work of all employees. That
duty has been interpreted broadly - in for example Burazin
v Blacktown City Guardian Pty Ltd (1996) 142 ALR
144 - and encompasses systems of work and the working
environment, including supervision and instruction.
The expectation is that employers are responsible for
what takes place within the workplace and thus, for example,
cannot comprehensively escape liability by claiming that
they were unaware of what managers were doing to subordinates
or staff were doing to each other.
The salient legislation is -
- Occupational
Health & Safety (Commonwealth Employees) Act 1991
(Cth)
- Occupational
Health & Safety Act 1989 (ACT) - here
- Occupational
Health & Safety Act 2000 (NSW) - here
- Workplace
Health & Safety Act 2007 (NT) - here
- Workplace
Health & Safety Act 1995 (Qld) - here
- Occupational
Health, Safety & Welfare Act 1986 (SA) - here
- Workplace
Health & Safety Act 1995 (Tas) - here
- Occupational
Health & Safety Act 2004 (Vic) - here
- Occupational
Safety & Health Act 1984 (WA) - here
In
applying those statutes courts have accepted characterisations
of bullying highlighted in preceding pages of this note,
for example WorkCover Victoria's characterisation of workplace
bullying as "repeated, unreasonable behaviour directed
towards an employee or group of employees that creates
a risk to health and safety" and the NSW Law Society's
behaviour
that intimidates, offends, degrades, insults or humiliates
a worker, possibly in front of co-workers, clients or
customers and which includes physical or psychological
behaviour.
As the following page indicates, OH&S legislation
has been used to address instances of bullying, with financial
penalties for those who directly abused people in the
workplace and for company directors or managers who were
not directly involved in that abuse but who turned a blind
eye to bullying.
It is typically complemented by statutes that mandate
workplace insurance, including -
- Workers
Compensation Act 1951 (ACT) - here
- Workplace
Injury Management & Workers Compensation Act 1998
(NSW) - here
- Workers'
Rehabilitation & Compensation Act (NT) - here
- Workers'
Rehabilitation & Compensation Act 2003 (Qld)
- here
- WorkCover
Corporation Act 1994
(SA) - here
- Workers
Rehabilitation & Compensation Act 1988 (Tas)
- here
- Workers
Compensation Act 1958 (Vic) - here
- Workers'
Compensation & Injury Management Act 1981 (WA)
- here
That
legislation is significant because it may feature caps
on damages awards.
industrial relations law
Most Australians are employed under contract law (an agreement
specific to the relationship between the employer and
employee) or under an enterprise/industry agreement (covering
some/all employees as a class of people).
Irrespective of OH&S protection, industrial relations
law covering such agreements is relevant because bullying
- exacerbated by indifference on the part of the employer
- may become so unbearable as to force an individual to
resign from their job. That undesired departure (which
on occasion means the individual forgoes share option
vesting opportunities, loses sick/holiday leave or becomes
unemployed) can be characterised as constructive dismissal
and potentially allow the person to claim compensation
under industrial relations law and contract law.
One example is Dillon v Arnotts Biscuits (1997)
AIRC, discussed in the following page, where the court
found that incessant bullying by a manager had resulted
in constructive dismissal through the empoyee's resignation.
Another example is Police Service of NSW v Batton
[2000] NSWIRComm 79, where a detective was victimised
for whistleblowing after
refusing a bribe from a colleague, thereafter being incapacitated
through a psychiatric disorder that forced his retirement.
common law
Much injury - whether physical or psychological - in Australia
is dealt with through common law, ie by courts ruling
on the basis of precedent provided by decisions in earlier
courts or superior courts.
Common law has traditionally provided little, if any,
protection against harassment. It does however address
injury. Targets of bullying may thus use common law in
seeking compensation for physical injury (eg scarring
incurred through a workplace hazing) and loss (eg destruction
of personal property) or for psychological injury incurred
through bullying in the workplace, as a student or other
environments such as participation in a team sport.
Points of entry to the literature include Law of Torts
3 ed (Sydney: Butterworths 2004) by Balkin & Davis,
Torts: Cases & Commentary 5 ed (Sydney: Butterworths
2002) by Harold Luntz & David Hambly, Luntz' Assessment
of Damage for Personal Injury and Death: General Principles
( Chatswood: LexisNexis Butterworths 2006), Damages
for Psychiatric Injury (Leichhardt: Federation Press
2004) and Employer Liability for Workplace Trauma
(Aldershot: Ashgate 2002) by Des Butler, and Stewart's
Guide to Employment Law (Leichhardt: Federation Press
2008) by Andrew Stewart.
Common law may also provide protection (and potential
damages) in relation to employment contracts, with employers
for example being held to have made a commitment to a
bullying-free workplace through an employment contract
and an associated human resource manual or code of practice.
One instance is the decision in Goldman Sachs JB Were
Services Pty Ltd v Nikolich [2007] FCAFC 120, where
the Full Federal Court upheld a substantial damages award
to Nikolich over breach of contract in the finance sector.
That case is discussed in the following page.
criminal law
Criminal law is discussed in more detail here.
It encompasses offences such as -
- theft
-
assault (including threats and physical contact)
-
unauthorised confinement
-
destruction of property
and
other matters that are addressed by the state.
other
It is useful to recognise that bullying on occasion involves
action that may be more appropriately addressed as another
offence. Persistent harassment via SMS, email and phone
calls might for example be dealt with as stalking,
covered under state/territory anti-stalking legislation
such as the Crimes Act 1900 (ACT).
State/territory governments have on occasion, albeit with
little publicity, withdrawn authorisation of organisations/individuals
to train apprentices, for example under the Vocational
Education & Training Act 1990 (Vic).
Australian
courts have not held intermediaries (such as Telstra,
Australia Post, MySpace and BigPond) responsible for bullying
when those entities have been unaware that bullying is
occurring.
next page (Australian
bullying cases)
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