We have received a few queries recently about the differences between harassment and bullying and the line between performance management and claims of bullying.  This appears to be a confusing point for many employers, so we thought it made for a good topic for this month.

Harassment and bullying are often treated as the same type of workplace behaviour, however, the law relating to each of these areas is different.  The following is a condensed version of current legislative requirements to give you a snapshot of the key points.

What is Harassment?

Harassment is behaviour that humiliates, intimidates or offends a person and targets them on the basis of a characteristic such as race, sex or gender.

Harassment relates to the prohibition in anti-discrimination laws against sexual harassment and sex-based discrimination in the workplace.  These laws differ from health and safety laws in that a victim of harassment can make a complaint to an external agency (such as the Fair Work Commission) thereby launching a legal proceeding against the business.

Harassment can take many forms such as verbal, non-verbal and physical.  Any of the following behaviours could amount to harassment:

  • Imitating someone’s accent or disability;
  • Jokes that may be offensive to some people or a group of people;
  • Use of language that is not considered suitable in the workplace – for example, sexual, sexist, racist and other stereotyped name calling;
  • Repeated, unwelcome questions about someone else’s personal life;

Remember, harassment does not relate to sexual harassment alone.

Examples of non-verbal harassment can include sexually suggestive or offensive material on walls, computer screens, emails etc.  In addition, it could also include;

  • Continually ignoring or dismissing someone’s contribution in a work meeting or discussion;
  • Ignoring someone or intentionally not sharing information with someone relating to their work and/or work requirements;
  • Suggestive looks or lewd comments about a person’s appearance;

What is Bullying?

Bullying is repeated, unreasonable and unwelcome behaviour directed towards an employee or group of employees that creates a risk to health and safety.  Bullying is also a health and safety issue and an employer’s obligation to prevent bullying relates to the duty of an employer to provide a safe workplace for employees.

If a person is subject to a single incident of unreasonable behaviour, it is unlikely to be bullying.  However, the incident should not be ignored as it may have the potential to escalate into bullying.  Addressing the behaviour before it is repeated is the best way to manage the situation.

A business can be investigated and prosecuted by the State regulator for a breach of health and safety legislation if bullying is allowed to occur in the workplace.

Since 2014, employees are also able to make a complaint to the Fair Work Commission about workplace bullying to receive an order to stop the bullying.  This gives employees additional avenues for addressing any claims of bullying.

What is not Bullying?

It is important to differentiate between bullying and an employer’s legitimate authority to direct and control the way work is done.  It is reasonable for employers to allocate work and for managers to give feedback on a worker’s performance.

This can include:

  • Setting performance goals and deadlines;
  • Allocating work;
  • Rostering work hours;
  • Informing an employee about unsatisfactory work performance or inappropriate behaviour.

As a business owner you must ensure that you have anti bullying and harassment policies as part of your HR suite of tools.  Ensure that your teams are fully aware of how to report (and to whom) any concerns and that they are dealt with efficiently and effectively.  Having a robust process for addressing concerns (not just those associated with harassment or bullying) in the workplace is always a very good risk prevention measure.

If you require any assistance with drafting and/or implementing your policies or guidance on any of these matters, please contact us for an obligation free discussion.