Courts cannot catch every workplace bully

THE Skype-sex scandal at the Australian Defence Force Academy led to dramatic statements about a toxic campus culture but it wasn't the only story of bullying to make headlines this week.

On Tuesday, Victoria announced legislation to provide jail terms of up to 10 years for workplace bullies. And British papers were full of claims that the young Kate Middleton had been terrorised at school. Back then peer-to-peer harassment in the playground or the dorm was frowned on but usually resulted in victims toughening up or, as appears likely in Middleton's case, shifting schools. Ditto in the workplace, where belligerent bosses rarely lost the battle with their employees.

No longer. Bullying at work is a significant social and legal issue with corporations spending vast amounts on training, compliance, insurance and in some case legal fees and financial settlements.

Most complaints are made under occupational health and safety laws; discrimination laws; or unfair dismissal laws. While perpetrators can already be criminally prosecuted, the Baillieu government's move brings the behaviour specifically under sections of the Crimes Act covering stalking. It is also aimed at catching cyber bullies.

The legislation is being seen in Victoria as "Brodie's law" - a response to the horrific story of teenager Brodie Panlock who killed herself in 2006 after being tormented by four colleagues at a Hawthorn cafe. Last year the four were fined a total of $335,000 in the Melbourne Magistrate's Court after pleading guilty to charges initiated by WorkSafe (Victoria).

Panlock's is not the only tragedy to emerge from intimidatory behaviour but her case prompted public outrage, with the Herald-Sun among those calling for bullying to be taken more seriously under criminal law. When this week's news was posted on the paper's website, it attracted a stack of first-person accounts of bullying at the hands of employers.

But the elevation from management problem to criminal offence has many people, even supporters of action, concerned. Alastair Nicholson, a former chief justice of the Family Court, and chair of the National Centre Against Bullying, who last year argued criminalisation should be considered, now worries the legislation has been rushed.

"While I think the idea is a good one, I am a bit worried about widening the net too far," he says.

In The Australian yesterday, workplace lawyer Michael Tooma argued the new law was not needed because "it's already a crime". The head of the occupational health and safety practice at Norton Rose went on to warn the new laws could inadvertently catch a range of conduct that should not be seen as bullying.

Tooma, while emphasising the Panlock case is appalling, is concerned, like others, about the broader question of whether we are simply becoming too litigious and using the law "as a weapon against those with whom we merely disagree".

University of Queensland law professor Jim Allan for example, says the problem in this area is that "you are always choosing between least bad options".

"If we don't do anything, people will be bullied for sure," he says. But he worries about the unintended consequences of legislation, likening it to the effect of personal injury litigation on schools. "We don't have the paraplegic in the schoolyard but none of the kids are playing sport," he says. "I tend to think we are probably better off not trying to fix [by law] every bad thing that ever happens, because you can't."

One problem is that the definition of bullying is broad - and subjective. No one would deny Panlock was bullied. But go to the internet and examples of workplace bullying include being told at a meeting that your idea is "silly" ; being ignored or isolated in the office; having gossip spread about you.

Michelle Tuckey, a senior lecturer at the University of South Australia, who has researched extensively in this area, says that to qualify as bullying, behaviour must be a pattern repeated over time. "A one-off incident is not bullying and it has to be more than one kind of behaviour, it has to be a consistent pattern."

However, Tuckey draws a line between reprimands from a manager over work performance and bullying. "If it is about work and deadlines and quality of work it would be seen as a performance management issue," she says. "I think it would be less likely to be defined as bullying if it was just about work."

That's not how it plays at the office, according to Sydney lawyer Malcolm Davis who specialises in defending employers in such cases. A partner with the firm Herbert Geer, he says the Victorian legislation could increase the complaints under existing laws simply because it elevates the concept. Already he estimates 70 per cent of complaints are tossed out before they get to a specialised practitioner.

Yet companies still pay a big price. One of the problems is that the evidentiary burden falls on the employer to answer allegations about behaviour that can be very subjective, although it is easier to prove bullying when language is inappropriate or when workers are asked to perform inappropriate tasks. Which is why companies large and small put employees through awareness training on bullying. While this may tick the box for insurers and human resources, Tuckey argues it does not address the real causes. "I am a firm believer that you have to go back to the organisational culture," she says. "Training is not going far enough back to identify the real problems."

Simon Moss, an adjunct associate professor at Monash University's school of psychology and psychiatry agrees: "We should be focusing on trends in society and in the workplace rather than focusing on bullying per se. There is so much fluidity and change in organisations now and people are much more competitive, and that can increase a tendency to bullying."

Associate professor Adrian Walsh, a philosopher from the University of New England, accepts some will claim the Victorian law as yet another intrusion by the state into behaviour.

"There is always a tension between what is private and what is public and it is always difficult to resolve," he says. "But we know that some areas we thought were private are not private and that they should be subject to law."

In this sense, anti-bullying legislation should be seen as similar to racial vilification laws, he says. Both offer redress to people who are picked on, or victimised or made to feel extremely uncomfortable in a social setting. But he worries that bullying is a nebulous concept - he has seen cases where the person claiming they are being bullied actually has the real power in the relationship - and wonders whether "it might be better to leave it to the realm of morality, rather than litigation".

"There are all sorts of things that we believe are immoral but that we would not legislate to control," he says.