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Your questions answered: Workplace bullying - issues at common law

Bill Rogers, Crown Law, has provided answers to the questions raised during the workplace bullying webinar presented on 27 August 2014.

Watch the video recording of the webinar or download the presentation (PDF, 0.41 MB).

Q: At what point does "stress" become a "psychological injury"?
A: This occurs when a medical practitioner diagnoses that a person has a psychological condition arising out of stressors to which they are exposed.
Q: You have spoken about some claims that are currently in the system where an employee has said they do not want to be transferred. Are there any legal precedents where an employer has transferred a person to aid return to work and they have then alleged that this transfer action was them being bullied?
A: Not that I am aware of. As long as the process is reasonable management action and is carried with input from the claimant's treating doctor, it is difficult to see how the action could be seen to be workplace bullying.
Q: So a claimant may become the bully if established that the claimant in accusing the new team leader is in actual fact causing a new bullying environment to the team leader accused of bullying?
A: A complaint made against someone, as long as it is dealt with in an appropriate manner and in line with the employer's guidelines and procedures, cannot then be construed as bullying towards the person against which the complaint is made. In the event the complaint is found to be vexatious, as long as it was dealt with appropriately, the employer has not breached its duty of care for a claim subsequently made by the person against whom the original complaint was made.
Q: What if a claimant believes the behaviours are bullying but there was no intention to bully i.e. the person thought they were making jokes, etc.?
A: Refer to the Safe Work Australia Guide for preventing and responding to workplace bullying November 2013 . Workplace harassment is when someone repeatedly does or says something that is unwelcome and not invited or would offend, humiliate or threaten most people if it happened to them. The behaviour that could do this is a person being humiliated through gestures, sarcasm, criticism and insults. Some jokes, although not intended to be workplace harassment, could constitute workplace harassment.
Q: Are there any policy templates available relating to bullying and harassment?
A: See the workplace bullying section of the Workplace Health and Safety Queensland website.
Q: Which employer was found vicariously liable? Police Service or PCYC? In the NSW v Jeffrey case.
A: The NSW Court of Appeal was satisfied “that the State (through the Police Service) did not owe to the plaintiff an employer's duty of care, although it was liable, vicariously, for the Sergeant's negligent behaviour towards the plaintiff. The plaintiff, in the circumstances continued to be owed the employer's non-delegable duty of care by the PCYC, whilst performing his role in the unit. (State of New South Wales v Garry Donald Jeffrey & Ors [2000] NSWCA 171 at paragraph 46)
Q: Does a complaints process need to be in writing? And if so, is the employee manual a sufficient to place to have it written?
A: Any policy or procedure should be in writing and brought to the attention of employees. Such a policy could be included in an employee manual.
Q: As a manager, what do you need to put in place (documentation level) that would fulfil the requirement of "monitoring workload"?
A: If a person complains of excessive workloads, the employer should respond reasonably to the complaint. This could include ensuring that the employee is not working excessive hours, or if they are, finding out what the reasons are for that and how the employer can assist. If there have been significant structural changes in an organisation, ensure the re-assignment of tasks and duties is carried out in a reasonable and appropriate way. Employers should take notes of their actions and responses. Generally, common law claims for a psychological condition arising from workloads are very difficult for the plaintiff to prove.
Q: Should interviews be recorded for more accurate information gathering?
A: The recording of interviews is not necessary. Contemporaneous note taking is generally sufficient. It is my experience that recordings are used when a complaint is investigated by an external (to the immediate workplace) party.
Q: What view would the Queensland courts take in relation to claims of bullying where the employer was only made aware of the bullying claim when an application and medical certificate were received?
A: The employer also includes managers, supervisors and co-workers. If it can be demonstrated that bullying behaviours had been reported to or noticed by other people in the workplace, the employer is on notice. If the first they hear about a complaint is when an application and medical certificate are received, it is unlikely the court would find that the employer was on notice and should have taken some action.
Q: Can workers accepting jobs in lower roles be considered bullying? E.g. Worker used to be supervisor of a traffic control crew. Under a new employer, he is a traffic controller (not supervisor) but his supervisor gives instructions/directions the worker finds humiliating because of his industry experience.
A: If the worker has applied for this job or is fully aware that they are moving to a less skilful role, then no. If they have moved intentionally and have abdicated their responsibility, this will not be considered bullying. As long as the re-assignment of a role or position is done in a reasonable and appropriate way, any instructions, feedback or guidance, as long as it is provided in a reasonable manner, would not be considered to be bullying.
Q: I just wanted to clarify – you indicated that when the worker returns to work, you need to carefully consider any return to work options and not simply accept a medical clearance. Can you please clarify/elaborate?
A: In the event an employee has suffered a psychological injury, particularly if it arose from behaviours in the workplace, it is important that these factors be considered when a person returns to work. Due to the pre-existing condition, the employer has a higher duty of care for the employee. For this reason, any return to work should be done with input from the claimant's treating doctor. I would recommend that part of the return to work program would also include regular follow-ups with the employee to ensure they are coping.