Trish Low: Beating bullies

BULLYING is a problem in Australian workplaces including those in the health sector.

In a 2009 survey of 747 registered Australian doctors, 25% of respondents reported that they had been bullied in the previous 12 months. The survey found the most commonly reported sources of bullying were “consultants, registrars and other senior doctors” (44%) followed by “managers, administrators and clerical staff (27%)”.

There’s no question that workplace bullying can cause serious damage to the mental and physical health, and wellbeing of workers. In the worst cases, it has led to victims taking their own lives. And it comes at a cost to employers and the economy in absenteeism, sick leave, lost productivity, workers compensation claims, increased staff turnover and litigation.

Critically, it’s suggested that where clinical staff morale is eroded through a culture of workplace bullying, patient care may suffer.

At the beginning of this year, the federal government introduced national workplace bullying laws under the Fair Work Act 2009. Previously, bullying was principally dealt with under occupational health and safety laws, with serious cases prosecuted by state and federal safety regulators (WorkSafe and WorkCover authorities).

For the first time, the new laws gave us a national statutory definition of bullying and provided workers with a right to make bullying complaints to the Fair Work Commission (FWC). The FWC has broad powers to investigate bullying complaints and issue orders to stop bullying.

Why do these laws matter for hospitals, private practices and other employers in the health sector?

Because, for the first time, individuals and employers accused of bullying, or failing to prevent bullying, may be called before the FWC to explain themselves. If they can’t, the FWC may issue orders against the employer organisation and/or individuals in their personal capacity.

So, the consultant who habitually makes belittling and demeaning comments to a registrar may be ordered not to address the registrar unless another staff member is present. The practice manager who unfairly assigns the worst shifts to the same staff member week after week may be ordered to implement a roster for fair shift allocation. The head of department who is aware of a manager who routinely excludes one of their peers from key meetings might be ordered to take steps to prevent this.

Importantly, the new laws provide that “reasonable management action” undertaken in a reasonable way does not constitute bullying. This means that bullying claims about normal management activities, such as directing and controlling work, performance management or disciplining staff, cannot succeed provided those activities have been carried out in a fair and reasonable way.

The AMA has encouraged doctors’ employers and the medical colleges to introduce anti-bullying policy and has given guidance on what such policies should address. We echo this advice with our clients.

These policies don’t need to be complicated — but they do need to be applied consistently and fairly. All staff need to be made aware of the policies and of their rights and responsibilities under them.
 

Trish Low is a Melbourne employment lawyer and National Leader of the Australian Equal Opportunity and Training Practice at global law firm, Herbert Smith Freehills. She specialises in equal opportunity and diversity law and has been assisting clients across a range of industries to prepare for, and respond to claims under, the new bullying laws.