Anti-bullying and anti-discrimination laws
Toxic and bullying workplaces can be experienced in many forms and can ruin a great job. A toxic workplace includes conduct that is severe and pervasive enough that a reasonable person would consider the workplace intimidating, hostile or abusive. It can include acts of assault, intimidation and ridicule. In turn which can be categorized as physical or emotional harassment.
These forms of harassment are protected and governed under anti-bullying and anti-discrimination laws. Which act to ensure a workplace that is free from toxic behaviour. Toxic behaviour in a workplace environment against the law when it falls under the definition of bullying. Alternatively when a person is treated less favorably on the basis of certain personal characteristics, constituting discrimination.
Examples of Toxic Behaviour
Toxic behaviour is unlawful when it falls within the definition of workplace bullying. Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker. Or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.
In Amie Mac v Bank of Queensland Limited and Others. The Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were
“intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorizing, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.Vice President Hatcher
These examples on their own or in combination would indicate a toxic workplace environment.
Toxic and bullying workplaces, Is it a risk to health and safety?
In regards to establishing a risk to health and safety for the test of workplace bullying. Proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by toxic workplace behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.
Reasonable management action will not constitute bullying.
However, conduct that is reasonable management action will not constitute bullying. An employee will need to demonstrate that the action is not reasonable management action that is conducted in a reasonable manner. The question of whether the management action was carried out in a reasonable manner is a question of fact and the test is an objective one.
It considers what action is taken. The facts and circumstances giving rise to the requirement for action. The way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. This means that even though the reasonable management action may appear to be toxic. Tt may not always constitute workplace bullying under the statutory definition.
Making a Complaint about Toxic Workplace Behaviour
If you feel that you work in a toxic workplace environment, there are a number of things you can do. Firstly, you can tell the employees involved to stop with their conduct that is causing a toxic workplace environment. Sometimes, this is enough to make the toxic behaviour stop and for the employee to realize. That their actions are creating a threat to your health and safety.
If you have told the employee to stop, but the toxic workplace behaviour continues. Report the toxic workplace behaviour to Company management. Complaining to the boss may seem daunting and you may be in fear of adverse action. However most employers will be willing to help and rectify the toxic workplace once they are aware. If an employee is uncomfortable by the toxic workplace conduct of other employees or their superiors, they have the right to speak up and put an end to the toxic behaviour.
If bullied the employee can lodge a Form F72
Should this fail and the Company has not taken any steps to address or fix the toxic workplace. The employee can seek assistance by lodging a claim to an external body such as the FWC and fight for their rights. If an employee is still employed by an employer and wishes to make an application in regards to the toxic workplace, the employee can lodge a Form F72. Application for an order to stop bullying.
This application seeks a preventative remedy, not remedial, punitive or compensatory. If appropriate, the Fair Work Commission will schedule a mediation session for the parties involved to try to help them resolve the case.
Benefits of mediation
One of the benefits of mediation is that the outcomes that can be reached can be tailored, depending on the parties’ situation. This means that the parties can seek to resolve a case in any way they consider will assist them to resume a constructive and cooperative relationship. If there is no agreement the case will progress to a formal conference or hearing before a Commission Member. This will enable the application to be determined and a binding decision or order be made.
A binding decision or order will require a worker/s or the employer to stop the bullying behaviour and remedy the toxic workplace environment. The worker/s may be ordered to comply with the employer policies, to be separated, transferred, have rosters changed. For the employer or principal to monitor the behaviour or their work participants. For training or counselling to be offered to the worker and to be taken up by the worker. The employer may be ordered to review and improve their bullying policies and complaint handling policies or for behaviour to cease outside of work.
If an employee is still employed and has complained about the toxic workplace environment to no avail. Or have since been subject to adverse treatment, the employee can lodge an F8C Application – General Protections Application Not Involving Dismissal.
The employee will need to demonstrate that the employer has subjected an employee to a form of adverse action (not including termination). And they believe this action was done because they have exercised a workplace right by complaining. About sexual harassment or discrimination in the workplace. If the employee has been terminated, they can lodge an F8 Application – General Protections Application Involving Dismissal.
Adverse actions can include as prejudicing the employee or injuring the employee in his or her employment. The employee can argue that the Company’s inaction constitutes adverse action as they are refusing or failing to remedy and address the complaint.
Once a complaint is lodged, with the Fair work Commission
Once a complaint is lodged The Commission will only hold a private conference to deal with the dispute if both parties agree to attend. If one of the parties to a non-dismissal dispute does not agree to participate in a conference. Or if the dispute remains unresolved after the conference. The employee can choose to make an application to the Federal Court or the Federal Circuit Court to deal with the matter. During a conference, a Commission Member will work with those involved to reach an agreed resolution to the dispute. The Commission Member may make a recommendation or express an opinion during the conference. however cannot make a binding final decision or an order.
The employee can seek specific remedies as to what they would like to occur in order to resume a constructive and cooperative employment relationship. If the employee believes the relationship is beyond repair and they no longer want to be employed. The employee can see an exit package, by way of resignation, to terminate the employment relationship.
Pain and suffering compensation
If the employee can demonstrate pain and suffering as a result of the harassment suffered, the employee may seek compensation in the form of general damages. You must have medical evidence to support this. The paid and suffering must be in the course of your employment. If you want assistant or guidance in lodging your application against your employer, please give us a call on 1800 333 666. For a free and confidential consultation.
If an employer has terminated an employee and they believe this action was done because they have complained about discrimination or sexual harassment. Or because they possess a protected attribute, the employee has 21 calendar days after the termination took effect, to lodge an application in the Fair Work Commission. Once an application is lodged. The Fair Work Commission will set the matter down for a conciliation conference. The same procedure is followed as in non-dismissal disputes.
If you want assistant or guidance in lodging your application against your employer. Please give us a call on 1800 333 666 for a free and confidential consultation.
Toxic and bullying Workplaces
I hope you you found “Toxic and bullying Workplaces, 10 ways to stop it” off some help. Its not easy out there, we know that, we are here to help. Companies are living organism’s, along with the complexity of workplaces and living. It feeds into a toxic life that needs to be avoided. AWNA are leaders in workplace commentary, advice and research. All Fairwork Australia matters, including redundancy, general protection claims, dismissal and probation issues, whatever call us now. We work in all states including Victoria, NSW, QLD
Another article on toxic workplaces that may be informative to you, click here
Another resource on toxic workplace culture that may be helpful to you, click here
Bullying by the mean girls, click here
Types of workplace harassment, click here
Dismissed for not agreeing to a performance improvement plan click here
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.