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Connexus : Issue 36
isolating the person, removing work opportunities and running them down. "Part of their bullying behaviour is spreading misinformation about the victim," says Stacey. "When the victim makes a complaint, nobody is able to hear it because their view of the victim is such that it has been created by the bully." All complaints of bullying should be taken seriously, with an open mind, she says. "The biggest mistake senior managers make is failing to accept that a high- achiever in their business could be a bully. They receive a complaint or have high attrition in an area, but they have a well-performing manager and can tend to disbelieve any complaints about that person's behaviour, or they dismiss them as trivial." Many victims are silent sufferers, says Brad Swebeck, leader of the workplace relations practice group at law firm Hicksons. "They leave, they just think it's too hard [to complain], or they don't have faith in the workplace system," he says. However, the bully will probably stay and move on to another victim, be it a current or newly arrived employee. Even after a bullying victim has left, it may not be the end of the issue for an employer. Under the federal Fair Work Act 2009, victims have six years to launch a complaint about the conduct of an employer that adversely affects their workplace rights. Workplaces that allow bullying can also be pursued for breaches of occupational health and safety regulations, which are state or territory- based laws. In Victoria, the Attorney- General is investigating whether laws need to be extended to include heftier fines or jail terms for the worst offences. The legislation has been dubbed 'Brodie's law' in memory of bullied waitress Brodie Panlock. Also in Victoria, the Construction, Forestry, Mining and Energy Union's forestry and furnishing products division says it will demand that a clause be inserted in future enterprise agreements ensuring that companies act quickly on complaints in a "fair, proper, impartial investigation" and give victims "'adequate support", keep records of meetings, and develop anti-bullying policy and training. This will open up an avenue for the union to seek injunctions at workplaces where bullying is alleged, and ask courts to force employers to move bullies away from their victims. MORE LEGAL CASES The number of legal cases dealing with bullying and harassment will grow as more people become aware of their rights under the Fair Work Act, says Swebeck. "These general protections are here to stay," he says. "And, in my view, they cover bullying in the workplace." Companies pursued for breaches of the Act face a reverse onus of proof. If an employee can point to a breach, it's up to a company to prove it didn't happen. There is no cap on the amount of general financial damages that can be awarded. Employers should also worry about the severe damage a bullying case could do to their reputation. "Who'd want to work at a place on the front page of the paper, where someone has been held up for thriving in a culture that allowed bullying to go on?" says Swebeck. Companies need to ensure their policies and procedures are robust enough to deal with complaints of bullying and harassment, he says. All employees, from top to bottom, need to know the consequences of breaching the policies. Standards must be introduced and enforced. They should be in w riting, with a clear commonsense definition of what bullying and harassment is, and should cover social media, use of company property (such as laptops) at home, and out-of-hours conduct. "It's like eradicating a disease. You continuously campaign to ensure that, if it's not in the workplace, you keep it out. And if you suspect it is in the workplace, you get it out and don't let it back in," Swebeck says. -- Carolyn Boyd is a freelance writer. "Employers should also worry about the severe damage a bullying case could do to their reputation." Brad Swebeck, Partner, Hicksons Lawyers Taking action • Establish and circulate a policy that makes bullying clearly unacceptable. Include the policy in letters of offer, contracts of employment and induction programs. • Identify unacceptable behaviour and explain why it is unacceptable. • Actively encourage employees who are being bullied to lodge a complaint. • Guarantee confidentiality of any complaints and investigate them promptly. • Ensure a fair hearing for the person being bullied and provide support. • Monitor the work environment to ensure it is bullying-free, especially where there has been restructuring or a change in personnel. • Encourage communication across the company between staff at different levels. • Provide ongoing training for all staff that covers harassment and discrimination, bullying awareness, assertiveness, interpersonal skills and confidence building. connexus www.abacus.org.au 53