Bullying & Workplace harassment

Workplace bullying is a risk to health and safety because it may affect the mental and physical health of workers.

Workplace bullying can adversely affect the psychological and physical health of a person. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it.

A worker is bullied at work if:

• A person or group of people repeatedly act unreasonably towards them or a group of workers;
• The behaviour creates a risk to health and safety.

Unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances.

Examples of bullying include:

• Behaving aggressively;
• Teasing or practical jokes;
• Pressuring someone to behave inappropriately;
• Excluding someone from work-related events; or
• Unreasonable work demands.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Discrimination

Discrimination happens when there is 'adverse action', such as firing or demoting someone, because of a person's characteristics like their race, religion or sex.

Bullying happens when someone in the workplace repeatedly behaves unreasonably towards another person or group of people and causes a risk to health and safety in the workplace. This behaviour does not have to be related to the person or group's characteristics and adverse action does not have to have happened.

Sexual harassment

Sexual harassment is generally defined as unwelcome conduct of a sexual nature, sexual advances, or requests for sexual favours, in circumstances in which a reasonable person in the perpetrator’s position, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Sexual harassment occurs when a person:

• Makes an unwelcome sexual advance;
• Makes an unwelcome request for sexual favours; or
• Engages in any other unwelcome conduct of a sexual nature

Towards another person and a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, or intimidated.

Sexual harassment may include:

• Staring or leering
• Unnecessary familiarity, such as brushing against a person or unwelcome touching
• Suggestive comments or jokes
• Insults or taunts of a sexual nature
• Intrusive questions or statements about a person’s private life
• Displaying posters, magazines or screen savers of a sexual nature
• Sending sexually explicit emails or text messages
• Inappropriate advances on social networking sites
• Accessing sexually explicit internet sites
• Requests for sex or repeated unwanted requests to go out on dates
• Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure sexual assault, stalking or obscene communications.

Misleading and deceptive conduct

Sections 18 and 31 of the Australian Consumer Law (ACL) impose on most of Australian employers obligations not to engage in misleading or deceptive conduct about various aspects of employment. Complementary legislation has been enacted at State and Territory level to ensure that ss 18 and 31 apply to the conduct of almost all employers who are outside the scope of the ACL.

• Subsection 18 (1) of the ACL states:

“A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.

• Subsection 31 (1) states:

“A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to …the availability, nature, terms or conditions of the employment… or any other matter relating to the employment.