When is an employer liable for workplace bullying and harassment?
Workplace bullying and harassment continue to be serious issues across Australian workplaces. Employers face significant legal and financial exposure when these behaviours occur under their watch. Understanding when and how an employer becomes legally responsible is critical for proper workplace management and risk mitigation.
Whether you’re an employer, HR professional, manager, or health and safety officer, knowing your obligations can help protect both your organisation and your employees. If you’re dealing with workplace bullying or harassment issues, Biddle Law compensation lawyers in Worongary can provide expert guidance on employer liability matters.
Key Takeaways
- Employers have legal duties under WHS laws to provide safe workplaces free from bullying and harassment
- Liability can arise from conduct at work, during work-related activities, or via work systems
- Proper complaint handling, investigation processes, and preventative measures are essential to limit liability
- Multiple Australian laws and regulators oversee workplace bullying and harassment claims
- Prompt and appropriate responses to complaints can serve as potential defences for employers
When Employers Can Be Held Liable
Legal Concepts and Workplace Context
Workplace bullying is repeated unreasonable behaviour directed towards a worker that creates a risk to health and safety. Harassment involves unwelcome conduct based on protected attributes like race, gender, or disability. Victimisation occurs when someone is treated poorly for making a complaint. For employers to be liable, these behaviours typically must occur in a work context – either physically at the workplace, during work functions, or through work-related communication channels.
Where Conduct Must Occur
Employer liability generally extends to conduct that happens:
- On work premises during business hours
- At work-sponsored events and functions
- During business travel
- Via work email, messaging platforms or phone systems
- On social media when there’s a sufficient connection to work
Employer Legal Duties
Australian employers have primary duties under Work Health and Safety laws to provide safe working environments. This includes taking reasonable steps to prevent psychological hazards like bullying. Employment laws also create obligations regarding fair treatment, while anti-discrimination legislation prohibits harassment based on protected attributes.
Distinguishing Unacceptable Behaviour
Not all negative workplace interactions qualify as bullying or harassment. Reasonable management actions carried out in a reasonable manner are explicitly excluded from bullying definitions. This includes performance management, disciplinary action, work allocation, and organisational change – provided they’re conducted fairly and appropriately.
Key Australian Laws and Regulators
Fair Work Commission Jurisdiction
The Fair Work Commission has anti-bullying powers allowing workers to apply for stop bullying orders. While these don’t include compensation, they can require specific actions to prevent future bullying. The Commission focuses on future risk rather than punishing past behaviour.
Work Health and Safety Framework
WHS laws across Australia require employers to manage risks to psychological health, including bullying. Safe Work Australia provides guidance materials, while state regulators can issue notices and penalties for non-compliance with safety duties.
Anti-discrimination Legislation
Federal and state anti-discrimination laws prohibit harassment based on protected attributes including sex, race, disability and age. These laws can hold employers vicariously liable for employee conduct unless they took reasonable preventative steps.
Regulatory Oversight
Multiple regulators oversee different aspects of workplace bullying and harassment:
– SafeWork NSW, WorkSafe Victoria and equivalent state bodies oversee WHS compliance
– The Australian Human Rights Commission handles federal discrimination complaints
– State-based anti-discrimination agencies address state-level complaints
– Comcare regulates Commonwealth employers
How Liability is Established
Complaint and Investigation Process
Liability investigations typically follow a structured process: initial report and triage, preliminary assessment, formal investigation if warranted, findings determination, and implementation of outcomes. This process must be fair, thorough, and timely to protect both complainants and respondents.
Evidence Types
Evidence that typically influences liability determinations includes:
– Written communications (emails, texts, social media)
– Witness statements and interviews
– HR documentation (previous complaints, performance records)
– Security footage where available
– Medical reports showing psychological impact
Decision-Making Factors
When assessing potential bullying or harassment, decision-makers consider:
– Frequency and persistence of the behaviour
– Severity and impact on the recipient
– Power imbalances between parties
– Workplace culture and accepted norms
“Prompt action following a complaint is often the most effective way for employers to limit their liability and demonstrate their commitment to workplace safety.” – Biddle Law
Employer Defences
Employers may defend against liability by demonstrating:
– The actions were reasonable management actions carried out reasonably
– They had no knowledge of the behaviour despite adequate systems
– They took prompt and appropriate remedial action once aware
– They had implemented reasonable preventative measures
Employer Obligations After a Complaint
Immediate Protective Steps
Upon receiving a complaint, employers should implement appropriate interim measures to reduce harm, such as:
– Separating involved parties where practical
– Modifying reporting lines if necessary
– Offering support services
– Considering temporary changes to work arrangements
Investigation Requirements
Investigations must follow principles of procedural fairness, including:
– Appointing unbiased investigators (internal or external)
– Setting clear timeframes
– Giving all parties opportunity to respond to allegations
– Maintaining confidentiality to the extent possible
Record-Keeping Considerations
Proper documentation is essential throughout the complaint process. Records should be secure, confidential, and compliant with privacy principles. Documentation serves both as evidence of the employer’s response and as protection against future claims.
Supporting Affected Workers
Employers should provide appropriate support to all affected employees, which might include:
– Access to Employee Assistance Programs
– Referrals to mental health professionals
– Flexible work arrangements during investigations
– Regular check-ins and updates on process
Practical Prevention Strategies
Effective prevention remains the best protection against liability. Key elements include:
Policy Development
Comprehensive policies should clearly define unacceptable behaviours, outline reporting procedures, explain investigation processes, and specify potential consequences. Policies must be regularly updated and communicated to all staff.
Training Programs
Regular training helps establish behavioural expectations and builds skills. Training should cover:
– Recognising bullying and harassment
– Bystander intervention techniques
– Conflict resolution skills
– Management responsibilities
Leadership Accountability
Leaders must model appropriate behaviour and actively address issues when they arise. This includes promoting a speak-up culture, taking complaints seriously, and consistently applying policies regardless of the person’s position.
Risk Assessment
Regular workplace assessments help identify risk factors for bullying and harassment. Anonymous staff surveys, exit interviews, and consultation with health and safety representatives can provide valuable insights into workplace culture issues.
Conclusion
Employer liability for workplace bullying and harassment depends on various factors, including the context of the behaviour, the employer’s knowledge, preventative measures in place, and responses to complaints. By understanding legal obligations, implementing robust policies, providing proper training, and responding effectively to issues, employers can significantly reduce their liability exposure while creating safer workplaces. Taking a proactive approach not only limits legal risk but also supports productivity and employee wellbeing. If you’re facing workplace bullying or harassment issues that may involve employer liability, Biddle Law can provide expert legal guidance tailored to your situation.
