Gillard Supports Federal Workplace Bullying Laws

As reported by the Australian, the Gillard Government has signalled support for a national scheme which would see the introduction of  jail terms for incidents of serious workplace and cyber bullying.

At a recent Ministerial Standing Committee on Law and Justice, Government Ministers flagged the importance of finding effective means of dealing with all forms of bullying, whether occurring in the workplace, school yard, sporting club, cyberspace or elsewhere.

Ministers in favour of the introduction of Commonwealth legislation alluded to the  introduction of Victoria’s Workplace Bullying Laws, known as ‘Brodie’s Law’ in Victoria, named after Brodie Panlock, who tragically threw herself off a multi-storey bullying after prolonged and severe bullying at her workplace in 2006.

The owner of Cafe Vamp, where Panlock worked, Marc Luis Da Cruz, and his company MAP Foundation pleaded guilty to two charges of failing to provide and maintain a safe working environment.  The company received a fine of $220,000 whilst the three employees and Manager received separate fines, however no custodial terms were imposed.  What price can be put on an individual’s life? The case caused a public outcry and pleas for law reform to introduce jail terms for those responsible for aiding such grotesque bullying.

The proposed national regime would likewise introduces jail terms for workplace and cyber bullying.  To this end, Federal ministers have been advocating for the introduction of legislation at the Commonwealth level, mirroring the recent amendments introduced into Victoria’s Workplace Bullying Laws.

The Victorian amendments modified the crime of stalking in the context of bullying in the wake of the Brockie Panlock tragedy, in which those employees responsible for tormenting her  escaped imprisonment from what was shocking bullying.  One of the disturbing aspects of the Brodie Panlock case was the Coroner’s finding that the Manager of the Cafe at which Brodie worked, “turned a blind eye” to the bullying and “did nothing” to prevent it.  In telling employees whom the Employer was aware were  bullying Panlock to “take it out the back“, he  actually encouraging the behaviour.

The legal framework relating to bullying is diverse.  There is no unified national legislation dealing singularly with bullying, nor is there any national consensus regarding the legal characterisation of bullying. 

Therefore, what kind of behaviour is legally recognised as constituting bullying varies from jurisdiction to jurisdiction. Only one jurisdiction, South Australia, has attempted to define bullying within occupational health and safety legislation.

Up until the time of the Victorian reforms, Occupational Health and Safety Act (OH&S), have represented the primary vehicle for dealing with bullying type offences.  Under the OH&S Act, employers face fines of up to $215,010 in a personal capacity and $1,075,050 in the case of a corporation for failing, as reasonably practicable, to provide employees with a work environment that is safe and without risks to employees’ health.

Victims of bullying have been left to rely upon a mixture of common law and statutory remedies to  respond to bullying by perpetrators.

 Flagrant abuses can now be dealt with by the State bringing prosecutions under criminal law which may result in custodial punishment for perpetrators of severe bullying. Bullies will face up to 10 years’ jail under these legislative changes.

 The modifications to Victorian law resulted in amendments to the s21A of the Crimes Act 1958, s4 of the Stalking Intervention Orders Act 2008 and the relatively recently enacted Personal safety Intervention Orders Act 2010; s10.

This was necessary so that the law was consistent across different Acts of Parliament, and  makes provision for the taking out of Intervention Orders by victims of bullying in different scenarios.  Therefore serious bullying can not only now be addressed through the prosecution of criminal offences, but also throught the taking out of Intervention Orders.  Intervention Orders may be civil in nature, however where breaches occur they can then be charged as separate criminal offences.  

Workplace bullying and harassment also now extends to acts and conduct which takes place beyond the doorstep of the workplace as a result of  cyber bullying provisions being added to the Crimes Act prohibiting stalking.

The internet has been increasingly used as a tool for bullying and due to it’s architecture is indifferent to geographical boundaries. The South Australian legislature is legislating to make it a criminal offence to take or publish humiliating and degrading images of a person without their consent on social networking sites.  Facebook claims to have removed 20,000 underage users worldwide every day. 

To address this situation, the legislation has been amended so that it is probable that offences will occur in situations where either the victim or conduct is within Victoria’s jurisdictional boundaries.

An alternative avenue for targets of bullying, which may not be accessible to many victims of bullying, due to the prohibitive costs of litigation, is to sue Employers, as junior Solicitor Bridgette Styles when she initiated civil action against Clayton UTZ.  Styles took action not just to prevent the offending behaviour recurring, but also to seek compensation for physical and/or psychological injury suffered. Her action also sent a powerful message that bullying is unacceptable and will not be tolerated. The Court action resulted in a confidential settlement being reached. (see Clayton UTZ settles sexual harassment claim).  

 In Styles’ case the suffering she experienced was serious, based on her assertions that the experiences she was subjected to left her in a suicidal state.

The regulation of bullying type behaviour may, depending on the individual facts and circumstances, be dealt with under occupational health and safety legislation, the common law, statutory workplace compensation schemes, anti-discrimination law or provisions enshrined in industrial legislation.

Most employees will be employed under a contract or be covered by an enterprise or industry agreement although the coverage may only extend to a class of employees, excluding independent contractors or temporary employees.  That protection however may be of little consequence if bullying becomes so intolerable that an individual is forced to resign from their employment. Depending on the circumstances, an employee may be  characterised as having been constructively dismissed and eligible to claim compensation for pecuniary and other losses under industrial relations schemes. 

The regulatory system is confusing as there are different legal avenues which were and still are available to victims of workplace bullying in Victoria, contingent on the nature and context in which the bullying has occurred.  For instance if bullying constitutes discrimination of a kind prohibited by anti-discrimination law, for example on the basis of a victim’s personal characteristics such as gender, or racial or religious vilification, then anti-discrimination or equal opportunity legislation at the state or Federal level may apply, entitling a victim to lodge a complaint with the Victorian Equal Opportunity and Human Rights Commmission. (see Racial and Religious Intolerance Act 2000 (Vic), Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1993 (Cth), Equal Opportunity Act 2010 (Vic), Human Rights and Equal Opportunity Act 1996 (Cth), Sex Discrimination Act etc) 

The only other recourse for targets of bullying is to rely on Industry codes and best practice statements of principle which have been adopted by States such as Victoria, see WorkSafe Victoria 2005 Guide to Managing OHS in Community Services and WorkSafe Western Australlia 2010 Code of Practice: Violence, Aggression and Bullying at work 2010. Whilst these industry codes are important as a mechanism to increase awareness and accountability in organisations to send a message that bullying in any workplace environment is unacceptable, they rely on observance and compliance for their success.

The existence of such aspirational statements hasn’t prevented an unprecedented high prevalence of reported bullying incidents, ironically  alleged bullying at WorkSafe Victoria itself.  The spectre of there being a culture of fear and workplace bullying pervading an organisation which gives advice to victims of bullying, is some indication that  in practice these types of ‘in principle’ statements may be ignored by perpetrators and employers of organisations.  Managers and Heads of Workplace Relations Units are complicit in enabling an epidemic of bullying when they merely act as  bystanders, turning a blind eye to rampant bullying. 

If Styles’ claims that a  culture of bullying can be condoned in the Sydney office of a national law firm of the calibre of Clayton UTZ,  it cannot be explained away on the basis that the company and it’s senior partners and Managers of Workplace Relations were ignorant of the legal implications of bullying. 

 After all, Clayton UTZ couldn’t be taken to be ignorant of either the law proscribing workplace bullying or WorkSafe Victoria’s statements of principle acknowledging that a culture of bullying is unacceptable.

Various offices of Clayton UTZ are indeed responsible for delivering seminars as specialists in the area of workplace bullying and harassment, instructing other organisations on bullying and harassment in the workplace. 

 This is perhaps the most telling indication that there are no guarantees that bullying can be eliminated merely by knowledge alone. It is compelling evidence that a culture of bullying and/or harassment can gradually become entrenched and even flourish in organisations such as WorkSafe Victoria and large legal firms such as Clayton UTZ. 

Both of these organisations should be taken to be acutely aware of the legal and moral implications of condoning bullying,  in addition to comprehending the values of a contemporary society which is no longer prepared to tolerate or accept bullying as an acceptable for of behaviour.

 Bullying needs to be seen and addressed not just narrowly within a legal framework, but for what it is, namely a serious and systematic abuse of power which  occurs in interpersonal relations in a variety of environments.  When tolerated by organisations and condoned by Managers at the upper echelons, as  has been demonstrated in 2008 studies of bullying and harassment in the public sector, it is more appropriately labelled as a form of occupationoal violence.

Despite a pledge that whistleblowers in bureaucracies would be shielded from victimisation for making public interest disclosures when complaining about workplace problems, whistleblower and other laws have failed to protect public servants from psychological harassment, according to recent research conducted in both NSW and Victoria. Similarly in the UK, research reveals very high levels of bullying in the public sector, with a lack of management skills being cited as the predominant reason for the phenomenon.

Documented instances of bizarre initiation and hazing rituals, and more recently investigations into allegations of sexual harassment and victimisation from within the Australian Defence Forces, highlight the obvious fact that society’s expectations about acceptable individual responsibilities and restrictions on types of behaviour in the workplace towards colleagues are far from being acknowledged.  The accepted or informal rules within workplace environments vary widely, and there needs to be a common standard adopted to deal with the workplaces where the standards in a given workplace are far lower than what we would expect as a society.

 It is well known that bullying has always existed, but has in the past remained largely undocumented.  Investigations into bullying and harassment within certain professions, such as the legal profession, conducted across several jurisdictions, has revealed that both male and female members of the legal profession spanning several generations expressed little optimism that legislative change would translate into higher reporting rates for discrimination, harassment and bullying.

This was evidenced by the results of confidential surveys conducted of members of the legal profession, which exposed a variety of reasons for this lack of optimism, most of which were anchored in the attitudes and traditions which Legal Practitioners believe enure within the ranks of a profession which is inherently conservative and steeped in tradition. The legal profession is part of the apparatus which decides what laws are going to be made and how such laws are going to be enforced.  There will be always be a problem in holding the legal profession to standards.  Where contraventions occur, there was an expressed sentiment that the guilty parties will generally be much better equipped to defend themselves against accusations.  

Some respondents reported believing that it would take a generation to die out before any real change would occur, whilst others felt that the behaviour of older generations of lawyers was influencing the attitudes of younger entrants, creating a vicious cycle which could be perpetuated.  Clearly the truth is somewhere in between. Obviously a generation passing won’t eliminate bullying completely, but something needs to be done to make it change as otherwise it is will be enacted.  Where rules are enacted and not enforced,  two sets of rules develop, one set in the statute books and one which are actually followed in the workplace.

Bridgette Styles broke new ground in bringing civil action against a large law firm, daring to speak out about her personal experiences, despite this raft of previous reports and investigations revealing that, in the main, legal practitioners  faced with harassment and/or discrimination, would choose to ignore such behaviour due to concerns about how such complaints would be treated if they articulated them.

 Legal Practitioners expressed pessimism over positive change being effected even were Law Societies to introduce an offence of professional misconduct for members who engage in such behaviour.  As expressed by Respondents, this was mainly due to the belief that   cronyism existed in the legal profession, coupled with an expectation that such behaviour would fall to be judged by Disciplinary Boards and Panels constituted by either ex-members of such firms and/or their colleagues.

Victoria’s new bullying laws were framed in response to one of the most egregious and despicable cases of workplace bullying, resulting in Brodie Panlock taking her own life, however the new Victorian legislation also criminalises bullying which occurs beyond the workplace environment, extending to serious bullying through electronic media, such as email, instant messaging, the publication of defamatory material on websites, social networking sites and mobile phones. A growing and alarming range of malicious behaviours are emerging, ranging from unpleasant comments, pictures or videos of users being posted on social media sites, being sent unsolicited messages, or being impersonated when third parties use their name and/or password to harm someone else.  

 Meanwhile the UK Government has adopted a controversial cyber security strategy, part of which would see certain persons who are convicted of hacking, fraud and cyber bullying face wholesale bans from accessing the Internet. This objective is to be achieved by using Police and the Courts to impose what are known as “cyber sanctions” which will ban access to social networks. The move follows a recent trend of targeting and banning users from the web who were seen as having instigated riots during last summer in London. The proposals include introducing “cyber tag” technology to monitor offenders for non-compliance with bail and sentencing conditions banning their access to the web. The enforcement of the internet bans will be achieved through cyber tags, which will be triggered when an offender breaches conditions restricting their internet use, resulting in police and probation services being automatically apprised of the breaches. The Ministry of Justice and the Home Office will be responsible for implementing the scheme.  This is clear evidence that Governments are capable of mobilising quickly if sufficiently motivated.

 We have now learnt of the graphic emails which were transmitted throughout Clayton UTZ’s internet systems containing content which was extremely offensive to Styles.  The emails were successfully excluded as evidence to be considered by the NSW Supreme Court in the action brought by her. 

Surely Clayton UTZ would be well positioned to not only have articulated and implemented an Acceptable Use Policy prohibiting their networks from being misused by employees to distribute obscene, defamatory and other illegal content, but also practical mechanisms and IT controls for identifying, tracking and preventing unacceptable use by employees. One would think that a law firm of this scale would have the resources to have such mechanisms in place to prevent  employees from conducting bullying via email.

The most important part of any workplace bullying strategy  is clearly the response to abherrent behaviour, a response in the Clayton UTZ case which led to Styles’ being punished as a result of the complaint surfacing.  The misuse of the internet was only one part of a pattern of upsetting incidents Styles complained of in her action against Clayton UTZ.

We shouldn’t forget that this isn’t the first time that large corporate and even Government departmental networks have been used to distribute obscene, offensive and illegal content. This kind of misuse of internet systems in large bureaucracies and organisations is reminiscent of the manner in which the  systems of the Transport Accident Commission, large law firms, the AFL, the Department of Justice, and stockbrokers’ firms were used to transmit offensive images and illegal content about Kim Duthie in the Dikileaks scandal. (Dikileaks – Demetriou should Resign Pending Investigation of Misconduct

The Kim Duthie scandal and the AFL’s handling of her complaints, criticised by senior female AFL and former AFL executives, demonstrates that bullying has to be recognised as a management issue before change can occur. 

Whilst Kim Duthie wasn’t an employee of the AFL,  she was being harassed and bullied in a systematic and egregious way, and was subjected to revolting death threats over the internet.  Andrew Demetriou used his inability to identify the perpetrators for his refusal to do anything about the behaviour.  Nobody was held accountable, including the AFL which is ultimately responsible for what happens to persons who use their facilities and equipment, whether officials and employees, and arguably even players, who are in reality employees of the AFL, being employed by clubs as franchisees.  There is no escaping the fact that  AFL management and clubs have control over players and officials through contractual and other means, but demonstrated a reluctance to exercise any control.  

 Demetriou was dismissive of the  criticism levelled at him by female AFL Directors in the general manner in which the AFL’s handled the Kim Duthie complaint under the AFL’s ‘Respect and Responsibility Policy’. (Demetriou eager to brief AFL female Directors on Saints Girl Drama)  This is an anecdotal case that could be used to argue that the glass ceiling could be related to the inability of orgnisations to deal effectively with this kind of behaviour.

The culture of cover-up and silencing of critics is anathema to transparency in dealing with complaints made by marginalised individuals against large well resourced organisations.  The response, if any, to the existence and ongoing circulation of offensive emails was an extremely muted one, from AFL CEO Andrew Demetriou, even after it had emerged that Demetriou was in fact aware that certain AFL officials had been identified as being involved in the circulation of the relevant emails.

When considering the amendment of the laws prohibiting bullying, we shouldn’t make the mistake of forgetting that similar emails were published and re-published on a mammoth scale by workplace personnel of several Government agencies, including the Victorian Department of Justice, and within the high corridors of power in the broader corporate world.

Admittedly there will always be those who say that there are  issues of forensic proof which cannot be overcome when trying to identify a person responsnible for sending or re-publishing viral emails.  However this is not a convincing argument, when you consider that there are  mechanisms which can be put in place to prevent employees hiding behind the cloak of anonymity to carrying out bullying and harassing behaviour.   This lack of ability to bring anyone implicated to justice expressed by Demetriou and other persons exhibits a great deal of complacency.  It was known that Duthie was at risk.

It is important for these organisations to log and track the activities of employees if they desire any kind of accountability for any kind of behaviour.  Such mechanisms are in fact available and used within Government Departments to uncover the identity of persons who send or re-publish offensive emails everyday within workplaces. 

 Apart from the practical measures available, there is also legislation which makes certain  presumptions about the identity of the sender and receiver of an email transmitted.  The attitude of ambivalence to holding accountable those who had been identified as having participated in the circulation of the relevant emails, coupled with a conspicuous attitude of institutional complacency emanating from within our very own Justice Department should ring alarm bells. 

The typical internet user and employee today assents to the formation of electronic contracts by clicking the button that says ‘I agree’ perhaps more than they they do by signing contracts with a physical signature. 

 Individuals and organisations understand that when a  person makes an agreement on the internet, they are just as responsible for their actions as if they performed those actions in person.  There is a problem when an organisation doesn’t take measures to identify which employee/s were responsible for transmitting offensive illegal emails.  Employees have usernames and passwords when they send emails across an organisation’s computer networks.  These systems can be misused in various ways which would cost money or harm persons and it is foolhardy to assume that adequate mechanisms exist to prevent this.   

Even assuming we accept the explanation that such mechanisms don’t exist, the lack of an official and co-ordinated response to what was clearly abherrent and arguably illegal  behaviour appeared to go largely unnoticed by the public. 

More seriously,  it went unchecked or publicly commented upon by all institutions involved. Surely the legal, justice, AFL and financial sector take their acceptable use policies regulating the dissemination and re-publication of offensive and illegal content occurring across their networks seriously, particularly where it concerns egregious bullying.   Spoofing email may be an easy task however IT systems should be able to track employee usage and the origin of emails and IT Departments should be able to prevent employees using proxies when using workplace systems.  

There have been many documented cases of employees having their employment summarily suspended because of a lapse of judgement as a result of a hastily sent email. Why should it be any more acceptable for a practice to occur on such an endemic scale, which targets and puts at risk the safety of one 17 year old girl who was continually under  the national spotlight for her involvement with a high profile AFL football player.

 The viral nature of such an email doesn’t absolve the leaders of workplace relations or human resources departments within these organisations of their responsibility to act swiftly and decisively to  at the very least publicly denounce the transmission of such offensive and harmful content through their electronic systems by employees.

Accepting that no one single employee, AFL official or player who had been identified by Demetriou was reprimanded or sanctioned in any way, there is no excuse for the lack of an official public denouncement by any person in charge of workplace relations by the AFL or other  organisations implicated to the effect that the use of such systems in this manner was simply unacceptable.

Lessons aren’t learnt in seminars run by large law firms such as Clayton UTZ.  Seminars may  represent the start of the learning process, however just like anything else, instruction isn’t enough.  In order to effect positive change organisations have to be willing to pro-actively commit to putting ideas and effective measures into place at all levels of an organisation.  

According to Bridgette Styles, the culture at Culture UTZ was indeed responsible for condoning dysfunctional and antiquated forms of behaviour involving sexual harassment.

Clearly one of the keys to tackling bullying is education. However it logically follows that a failure to publicly denunciate such high profile incidents sends conflicting messages, both to organisations and society as a whole,  in terms of the acceptability of such practices. 

This begs the question of whether laws can ever hope to deal with such behaviour where there is such a manifest lack of will amongst persons in charge of monitoring safe workplace practices in the face of systematic abuses which they become aware of within the ranks of their own organisations.

 Abuses of authority result from asymmetries of power; power differentials in physical strength, aggression, social status or wealth.  Because harassment is inherently an abuse of authority, how could one expect that using normal mechanisms of accountability within an organisation would work?  For if those mechanisms were functioning effectively, it is very unlikely that these types of problems would have happened in the first place.

Bullying can be properly conceptualised as a reflection of the psychology of perpetrators and victims and a lack of an empowering culture within established hierarchies of power,  which greet bullying type behaviours with indifference.

Legislation may certainly be part of the solution to bullying, particularly egregious bullying of the kind that Brodie Panlock suffered, however once again, despite the existence of legislation criminalising the communication of death threats conveyed through computers, the high prevalence of death threats which emerged on social networking sites directed at Kim Duthie failed to result in any action of any kind being taken. 

 The silence was deafening as appalling incidents of bullying and serious threats propagated across social media networks. 

 There is no better example of an entrenched attitude of bullying and harassment anchored within an institutional culture than that which has manifested within the Australian Defence Forces.  Despite professing a strong commitment to inappropriate workplace practices such as anti-bullying and sexual harassment, the ADF has come under heavy scrutiny over a relatively long period of time through a series of high profile cases.

As stated above, amendments to Victorian bullying laws have been made to deal with workplace bullying. Victorian legislators, wanting to avoid defining the concept of bullying, have expanded the definition of stalking, providing typical examples of the types of behaviours which may constitute bullying.

The legislation in it’s present state, now provides that threats and verbal abuse or actions can be treated by Police as constituting stalking. In addition, actions that cause self-harm and suicidal thoughts come within that definition. 

Victorian Attorney-General Robert Clark is orchestrating the campaign to have Victoria’s workplace bullying laws introduced on a national scale, a move which has been greeted with support by Commonwealth Attorney-General Robert McClelland.

At a recent ministerial standing committee on Law and Justice, Clark put the issue on the agenda when he offered to brief other jurisdictions about Brodie’s law, whilst promoting discussion on the strengthening of anti-bullying laws across the nation. Damian Panlock, Brodie’s father, will be assisting Clark and Shorten in their efforts to focus on the effect of workplace bullying.

The reaction of the proposals announced by Clark by the NSW Attorney-General Greg Smith has been to monitor the progress of the new bullying laws to discern whether they prove to be an effective deterrent to workplace bullying.

The attempt to legislate to impose jail terms for serious bullying at a Federal level is a laudable one, however what seems to be missing is a firm response from the leaders of our Government, sporting and corporate institutions condemning bullying and threats when and where they occur.  

 This response would serve to strengthen the case for stronger legislation regarding workplace bullying, as would comprehensive uniform national laws protecting whistleblowers from making public and private interest disclosures, which may end up saving a vulnerable employee’s life.

 

Related posts:

  1. Victoria’s Workplace Bullying Laws
  2. Workplace Bullying Laws & Privacy
  3. Clayton UTZ Settle Sexual Harassment Claim
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