Mental health and bullying: proactively addressing the workplace challenges

Bullying and mental health issues in the workplace are two related topics which are often put in the ‘too hard’ basket for organisations. As early as 2008, statistics released from the Australian Bureau of Statistics indicated that 45% of Australians will experience a mental health issue in their lifetime^[1]. A 2012 study conducted by SafeWork Australia also found that 6.8% of workers had experienced bullying in the workplace in the last 6 months^[2].

Unlike physical workplace safety issues, there can appear to be no easy fixes in this increasingly complex area. However, employers should not be discouraged by these numbers or the ‘uphill battle’ that this topic often conjures up. Although there are various legal exposures that need to be carefully considered, there are also practical solutions that can be implemented in the workplace to reduce the risks associated with workplace bullying and mental health.

Workplace bullying and its impact

While there is no universal legal definition of ‘bullying’, workplace bullying is generally accepted to be repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety, and this is reflected in the legislation. Although bullying can take on many different forms, it is generally considered to be consistent behaviour that is victimising, humiliating, intimidating or threatening in nature. This may include, but is not limited to:

• name calling or derogatory comments;
• using a position of power to unreasonably pressure a worker;
• creating a hostile working environment;
• unreasonably excluding someone from work-related activities;
• setting unreasonable timelines or constantly changing deadlines;
• setting tasks that are unreasonably below or beyond a person’s skill level;
• physical contact or assault;
• practical jokes.

Importantly, bullying can occur between peers or a supervisor and a subordinate (and can include ‘upwards’ bullying of a supervisor by a subordinate or subordinates).

As the saying goes, every rule has an exception and bullying will not include:

• reasonable management action carried out in a reasonable manner (for example, performance management or disciplinary action where an employer can show the organisation has followed a fair process); or
• one-off instances of rudeness, insensitivity or other inappropriate behaviour.

Key legal exposures

The major legal risks associated with mental health and bullying in the workplace are the work health and safety exposures. In short, employers have a responsibility to eliminate or, where this is not possible, take reasonable steps to reduce the risk of injury to workers. While much of the focus traditionally has been on managing physical injuries, employers are equally required to ensure, so far as is reasonably practicable, the mental health and safety of their workers. This includes not exacerbating pre-existing mental health conditions.

Bullying can present a serious threat to workers’ mental health which, if not adequately addressed, could result in the following exposures:

• Prosecution under work health and safety laws;
• Liability for workers compensation claims;
• Adverse action and disability discrimination claims;
• Bullying applications before the Fair Work Commission; and/or
• Breach of contract and personal injury claims.

Three examples of where employers are going wrong

Employers are open to a raft of potential employee claims relating to stress and anxiety which, if left to fester, can result in significant compensatory claims for diagnosed psychological injury.

Example 1 — Failing to recognise bullying upwards

More commonly, employers are faced with ‘downwards’ bullying complaints, being those from junior staff members about their superiors. It is therefore often forgotten that bullying can occur at any level and in any direction. For instance, in State of NSW v Manall^[3] it was found that the employer had, for a significant period of time, failed to respond to a team leader’s request to help her deal with disruptive and uncooperative direct reports. The Court held that these issues were well known to the employer and should have been addressed, but were not. As a result, the team leader suffered significant psychiatric injury and was awarded $339,722 in damages.

Example 2 — Management action BUT in an unreasonable manner

It is important to remember that poor performance by an employee will not excuse unreasonable behaviour of an employer in addressing performance issues. For instance, in Krysman-Yeates v State of Victoria^[4], although there were genuine performance issues in play, an underperforming teacher succeeded in her workers compensation claim because of the unreasonable manner in which her performance management process was carried out. The teacher developed an anxiety and depression adjustment disorder after being faced with delivery of a detailed letter criticising her performance on her first day back from long service leave. Crucially, there had been no prior discussions about any performance concerns with the teacher, and in addition subsequent to this letter, no proper performance feedback was given.

Example 3 — Too slow to respond to complaints

An organisation’s failure to take steps to respond to employee complaints quickly is a common mistake. In a case involving a prominent investment bank an employee made a complaint to HR regarding a series of alleged malicious personal attacks and verbal abuse by his immediate supervisor, but did not get a final response for approximately six months. It was found that no proper investigation of the complaint had occurred. The employee, Mr Nikolich, suffered depression and stress as a result of the situation which was allowed to continue. Mr Nikolich was ultimately awarded just over half a million dollars for suffering a psychiatric injury at the hands of his employer and for breach of contract.

Practical tips for getting it right

Image credit: ©stock.adobe.com/au/lev dolgachov

There are some solutions that organisations should be implementing to help manage the risks associated with workplace bullying and mental health. These include:

• Practical policies — Having a written grievance and bullying policy is a must. Just be careful what you include in these as overcommitment and excessive promissory language can cause more harm than good.
• Implement the policies — Seems simple, right? This is where many organisations fall down. When a complaint is raised, your first port of call should be reviewing the relevant policies and then following them. This is why having practical and easy-to-follow policies will pay dividends.
• Investigate — So you have received a complaint, now it is time to investigate. This does not need to be a gruelling process, but should be taken seriously and conducted promptly and confidentially. If an employee has disclosed a mental health issue you may need to make adjustments to your process to ensure that, in all the circumstances, the process is reasonable.
• Tough conversations — Do not shirk from performance discussions and disciplinary action, where required. More often than not it is when something comes as a complete surprise that an employee claims that this has caused them to experience stress, anxiety or depression. Ensuring such conversations are carried out in a reasonable manner and there are genuine performance grounds for such a talk is absolutely key.
• Follow up poor behaviour — Do not let single incidents go unchecked. Although bullying is defined as more than one incident of unreasonable behaviour, all poor behaviour starts somewhere and should be stopped immediately.
• Medical information — If an employee has disclosed a mental health issue, then managing this is just as important as addressing any allegations of bullying. Asking for information from an employee’s doctor is acceptable (although it does require employee consent). Seeking independent medical information may also be appropriate. Subject to the medical information received, accommodations and reasonable adjustments may be required for the employee.

In summary, a lot of employers are left paralysed by allegations of bullying and harm to mental health and safety. Don’t get caught out by this inaction. By utilising the above tips, organisations will be on the right path to minimising the psychological risks associated with potential workplace bullying.

References

[1] National Survey of Mental Health & Wellbeing, Australian Bureau of Statistics, 23 October 2008.

[2] The Australian Workplace Barometer: Report on Psychosocial Safety Climate and Worker Health in Australia, Safe Work Australia, December 2012.

[3] State of NSW v Manall [2005] NSWCA 367.

[4] Krysman-Yeates v State of Victoria [2011] VMC 57.

Top image credit: ©stock.adobe.com/au/Photographee