What Is Bullying or Harassment?

It is important to distinguish between a person reasonably exercising their legitimate authority at work and an instance of bullying or harassment.

Directors, Nominated Supervisors, Room or Group Leaders may be required to direct and control how work is performed and are responsible for monitoring workflow and provide feedback to employees on their work performance. Feedback provided with the intention of assisting staff to improve performance or work-related behavior does not constitute bullying, however care should be taken to ensure that any performance problems are identified and dealt with in an objective and constructive way that is neither humiliating nor threatening.

Legal Framework

There is a raft of legislation defining the responsibilities of management and staff in addressing and dealing with workplace harassment and bullying issues. The principal legislative sources are as follows:

• Commonwealth anti-discrimination legislation 
i.e. the Racial Discrimination Act 1973, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992
  
• Other Commonwealth legislation i.e. the Fair Work Act 2009 and the Work Health and Safety Act 2011 (the WHS Act).
  

What is Workplace Harassment?

Workplace harassment consists of offensive, abusive, belittling, bullying or threatening behaviour directed at an individual or group of employees. Harassment in the workplace can range from excluding and isolating a person from workplace activities to extreme behaviours such as yelling, threats, and even physical assault.

The behavior associated with harassment is unwelcome, unsolicited, unreciprocated and usually (but not always) repeated. It makes the workplace or association with work unpleasant, humiliating or intimidating for the people or group targeted by this behavior. It can also impact on an individual or group's ability to work effectively.

Examples of workplace harassment may include:

• offensive physical contact or coercive behavior which is intended to be derogatory or intimidating;
  
• insulting or threatening gestures;
  
• interference with a person's work space, work materials, equipment or property, apart from that which is necessary for the ongoing work;
  
• continual unjustified and unnecessary comments about a person's work or capacity for work;
  
• pictures, posters, graffiti or written material which are offensive or obscene;
  
• phone calls, letters or messages on electronic mail or social networks which are threatening, abusive or offensive;
  
• persistent following or stalking within the workplace, or to and from work;
  
• dismissive treatment or material expressing prejudice or stereotypical assumptions about a group to which the person may belong;
  
• unwanted sexual overtures, references to personal life;
  
• continual, often subtle, undermining of colleagues’ self esteem, character, abilities etc;
  
• continual exclusion of a person or group from normal conversation, work assignments, work related social activities and networks in the workplace; and
  
• bullying, excessive criticism and verbal abuse.
  

What is not Workplace Harassment?

Workplace harassment should not be confused with legitimate and reasonable management discussions or actions, provided these are conducted with respect and courtesy.

Reasonable and legitimate management actions can include, but are not limited to, the following:

• performance management processes;
  
• action taken to transfer, redeploy or retrench employees;
  
• business processes such as workplace change or restructuring;
  
• allocation of work and/or responsibility;
  
• illness and injury processes including proof of illness or injury; and
  
• disciplinary action.
  

What is Bullying?

Workplace bullying is repeated, unreasonable behaviour directed towards a person or group of persons at a workplace, which creates a risk to health and safety.

‘Repeated’ refers to the persistent or ongoing nature of the behavior, not the specific type of behavior, which may vary. For example, bullying may comprise a combination of behaviors including unwarranted criticism or insults, spreading malicious rumors, deliberately withholding information or resources and influencing others to exclude or isolate the targeted person or persons. In many instances bullying appears to begin as discreet and indirect behaviors escalating over time into more open and direct behaviors.

‘Unreasonable behavior’ means behavior that a reasonable person, having regard to the circumstances, would expect to victimize, humiliate, undermine or threaten. It includes overt and covert types of behavior such as:

• abusive, insulting or offensive language;
  
• excluding, isolating or marginalising others, deliberately or otherwise;
  
• behaving in a way that frightens or intimidates;
  
• humiliating others through sarcasm, belittling someone’s opinions or unjustified criticism delivered by yelling or screaming;
  
• teasing or making others the brunt of practical jokes;
  
• deliberately intruding on a person’s space by pestering, spying or tampering with their work equipment or personal effects;
  
• spreading misinformation or malicious rumors;
  
• participating in ‘collective bullying’ or ‘mobbing’ which is characterised by passive aggressive group behavior used as a deliberate strategy to drive an individual from the workplace;
  
• setting impossible assignments or deadlines;
  
• assigning meaningless tasks or unfairly assigning unpleasant tasks;
  
• treating someone unfairly in relation to work rosters or workplace entitlements such as leave or training;
  
• deliberately withholding information or resources necessary for effective work performance;
  
• carrying out initiation pranks;
  
• displaying offensive material; and…
  
• ‘risk to health and safety’ includes the risk to the emotional, mental or physical health of the person(s) in the workplace.
  

What is not Bullying?

A single incident of workplace harassment does not constitute workplace bullying, although it may be distressing or harmful to the targeted individual and should not be tolerated. A single incident of harassment may be a warning sign for bullying and steps should be taken to prevent a reoccurrence.

Be aware that workplace harassment, whether a single or repeated occurrence, may breach the Commonwealth anti-discrimination legislation, the Workplace Health and Safety Act 2011 or the Fair Work Act 2009.

Further help and assistance

If you need assistance to develop or review your offers of employment, restraint or confidentiality agreements, contact DJMIR on (02) 6236 8966 or my email via djm@djmir.com.au