Workplace bullying and harassment are ongoing issues for employers in Australia. The economic impact of workplace bullying and sexual harassment on individuals and organisational outcomes is evident with increases in mental stress compensation claims and changes in legislation and codes of practice that highlights the critical influence bullying and harassment have over worker health and wellbeing.
Work health and safety laws in Australia recognise workplace bullying as a work health and safety issue, with the responsibility to prevent workplace bullying covered by employers’ primary duty of care, whereas harassment is covered by state-based anti-discrimination legislation. Although some differences in legislation exist between each Australian state, in general, bullying is defined as the “repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety” (Fair Work Ombudsman, 2022).
In 2021, the Australian Workplace Barometer reported that workplace bullying in Australia decreased from 9.7 per cent in 2014/15 to 8.6 per cent in 2020/21. Nationally, relatively high levels of bullying were reported in Government Administration and Defence, Transport and Storage and Retail trade. The AWB found women were more likely than men to be bullied and experience unfair treatment because of their gender or ethnicity. However, there were no differences between men and women regarding unwanted sexual advances, and men were more likely than women to experience verbal abuse in the workplace.
The cost of workplace bullying and sexual harassment to employers and employees leads to absenteeism, increased rates of depression and anxiety, cultural distrust, and high costs for employers in lost time and productivity and can also result in litigation and compensation in unfair dismissals. In all workplaces, complaints of bullying and sexual harassment must be taken very seriously. In Australia, laws protect individuals’ rights to safe, inclusive and respectful workplaces. It can be overwhelming for employers to investigate workplace bullying and sexual harassment complaints because they are often complex, highly emotive and challenging to navigate. Whether an investigation is conducted internally or externally, it must meet the employer’s obligation to conduct it objectively, fairly, and thoroughly.
There are advantages to conducting an investigation internally, but this decision must be balanced against the risk of an employee asserting that the investigation process is unfair or biased. Such perceptions can arise due to various factors, including personal and professional relationships between employees, internal politics, power imbalances and issues of competence and resourcing. In the decision of the Fair Work Commission, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592, it was held that appointing an objective third party to investigate complaints might be a prudent step where an employee “vigorously asserts” that an internal investigation would be compromised by bias or a lack of transparency. The employee was awarded $600.000 in that matter.
The Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] case is a reminder for employers that they should always consider the risk of an employee asserting the investigation process is unfair or biased and seek an independent third party to conduct investigations in the workplace.
At WISE workplace, we have a highly trained, qualified and experienced team committed to assisting employers in dealing with bullying and sexual harassment complaints impartially and professionally.
