Balancing the Act: ADCQ newsletter -
Bullying and the Anti-Discrimination Act
This article by Kate McCormack, Principal Community Relations Officer, Anti-Discrimination Commission Qld, first appeared in Balancing the Act, Issue 9, July 2000, page 3.
When bullying occurs, it is usually in the workplace, and can be described simply as 'bad' behaviour. It's the sort of behaviour which is unreasonable and inappropriate, and is usually repeated - in other words, it's often not a 'one off' situation. It can also be unlawful.
Bullying behaviour includes yelling or abuse, constant criticism of work, isolation of a person from normal work situations, overwork or underwork, impossible deadlines, undermining work performance, giving tasks which are meaningless or beyond the skill of the person, tampering with personal effects or equipment, or teasing. While there are many other forms of bullying, this list gives a sense of the types of things which come under the umbrella of bullying.
Many people refer to bullying as harassment or discrimination, and in fact the effects are the same, but bullying per se is not unlawful under the Queensland Anti-Discrimination Act 1991.
Anti-discrimination legislation in Queensland outlines a number of types and a range of areas where discrimination is unlawful. For example, if an Indigenous man is not given a job because he is Indigenous, or a woman is sacked because she is pregnant, then the behaviour is unlawful discrimination under the Act. In the same way, if a person is insulted, or called names because they have an impairment, or if a person is constantly criticised and belittled because they are approaching retirement age, then the behaviour may be unlawful under the Act. In other words, if the behaviour is based on one of the attributes covered by the Act and results in less favourable treatment, it is unlawful.
If, on the other hand, similar behaviour occurs, but it is not based on one of these attributes, it is not unlawful. This is because the Act is quite specific in the types of discrimination mentioned. The behaviour is still inappropriate and needs to be addressed by management, but the person who is the victim of the behaviour cannot lodge a complaint under the Act.
Earlier, I mentioned that the effects of bullying, harassment and discrimination are the same. Some of these effects include loss of self-confidence, reduced productivity, increased stress and anxiety levels, illness and increased absenteeism, and generally less ability to do the job.
This type of behaviour also impacts on the organisation in terms of reduced productivity, increased occupational health and safety incidents, loss of reputation, and increased costs because of absenteeism or resignation, recruitment of new staff, and possibly as a result of legal action.
It's in no one's interest to put up with bullying or to let it continue in the workplace. While it may be that a complaint with the Commission cannot be dealt with, there are other options for people suffering from bullying, and for employers to prevent it happening in the first place.
Many organisations have a policy of some sort on workplace harassment or discrimination. Inclusion of bullying in such a policy is usually the easiest way to ensure that staff and supervisors know the organisation will not tolerate this behaviour, and will act if it occurs. The policy needs to be dynamic, a living document which reflects this opinion. It also needs to be out there in the workplace, not sitting on a shelf in a supervisor.s office, unread and unused.
Many organisations also have a grievance procedure for dealing with complaints of various sorts in the workplace. Bullying behaviours could also be included. The procedures need to be clear, ensuring prompt and serious attention to dealing with complaints. It is also useful if the organisation has a (network of) Contact Officer (s) as the first point of call for those who are seeking information on how they might deal with the issue. Contact Officers need to be clear about their role, and trained to deal with these enquiries.
Finally, all staff, including (and especially) managers and supervisors, need to be familiar with the policies and procedures of the organisation. Many employers now ensure that staff undergo information sessions about unlawful or inappropriate behaviour, and also arrange for refresher sessions on a regular basis. The Anti- Discrimination Commission is often asked to provide these sessions.
Companies and organisations also have a legal responsibility to ensure that their workplaces are free of harassment and discrimination. Under the Anti-Discrimination Act 1991, the notion of vicarious liability means that employers are liable for breaches of the Act committed by their workers. A defence to this liability is that the employer took reasonable steps in order to prevent the discrimination or harassment from happening.
Workplace Health and Safety legislation also imposes an obligation on employers to ensure the health and safety of their workers. Where a worker is dismissed or is forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of the Queensland Workplace Relations Act 1997. Industrial awards and the Industrial Relations Commission may also be used in issues involving bullying, and provisions contained in the Workcover Queensland Act 1996 may be used where a worker suffers an injury or disease as a result of workplace bullying. The Public Sector Ethics Act 1994 and the Criminal Code are also relevant pieces of legislation which may be used in cases of bullying. Personal injury claims under common law may also be made.
While bullying is an unfortunate reality in some workplaces, victims do have options for dealing with it, and organisations do have obligations to prevent, minimise or deal with the behaviour. If bullying does occur, there are also various pieces of legislation which may be used, including the Anti-Discrimination Act 1991, for seeking redress. In any case, it.s in everyone.s interest to ensure that workplaces are free of such behaviour.
Note: The Workplace Health and Safety Division of the Department of Employment, Training and Industrial Relations, has produced two guides on the issue of bullying, one for workers, and one for employers. Copies are available from the Department, or from the Queensland Working Women.s Service in Brisbane.