Posted on March 10, 2011 in Bullying in the News by editor
by Helene Richards and Sheila Freeman
(This article was previously published in the Australasian Law Management Journal.)
In an ideal world, workplaces would be stimulating and exciting, colleagues friendly and supportive, and everyone would love going to work. At worst, our workplaces should be tolerable because they are safe and we receive a regular salary. We should never be terrified of going to work, every day should not be an endurance test, and we should not be left crippled emotionally, psychologically or physically by events that occur there. Yet this is what bullying does to a large proportion of the population.
Despite numerous campaigns, bullying is endemic in schools and workplaces. This prevalence may be because society appears to condone, and even encourage, aggression in many areas.
In parliament, politicians bicker and hurl insults across the floor; on the sporting field, top cricketers and footballers, idolised by millions, sledge their opponents continuously and viciously. Australia’s most popular television shows are reality programs that focus on winning at all costs: on ‘Big Brother’ and ‘Survivor’, a group of backstabbing people compete to come out on top; on ‘Australian Idol’, judges belittle and humiliate contestants; on ‘The Biggest Loser’ participants are ridiculed, bullied and made to perform degrading challenges.
These shows, with cultures of distrust, intimidation, harassment and threats of dismissal, are nothing more than games based on institutionalised bullying, with no consideration for the dignity of the individuals. If these are the programs we most like to watch, what does that say about us and what kind of example are we setting our children?
The more we view this type of behaviour the more immune we become to its offensiveness and the more ‘acceptable’ and ‘normal’ it seems.
There is no legal definition of bullying. We define it as ‘a repeated pattern of unprovoked, unwelcome, hostile behaviour that intentionally inflicts, or attempts to inflict, injury, hurt, humiliation or discomfort.’ In any decision on whether particular behaviour constitutes bullying, the focus should be on the frequency of the behaviour—a one-off incident is not bullying.
Bullying can be physical (pushing, poking, shoving or hitting) or psychological (subtle and insidious intimidation, verbal and non-verbal, which usually takes place without witnesses, and so is difficult to prove).
The list of psychological bullying behaviours is long, but includes sarcasm, insults, isolation, constant criticism, taunting, yelling, abusive language, offensive messages, pictures, emails or voice mail, withholding of materials or equipment, malicious gossip, sabotage, taking credit for another’s work.
Victims react in different ways: some become quiet, irritable and have mood swings; some lose concentration at work and start making serious mistakes; others become tearful, nervous, depressed; others become physically ill. They can experience any or all of the following:
I feel sick every day because I know I’ll run into him… Today he walked passed me and stared at me with a sly smile on his face and I froze. I was a quivering mess.
My family is on the verge of separating. My children are experiencing undue stress. I cannot get a job in Australia.
I began to have panic attacks. I was scared to death, and thought I was going crazy.
Potential long-term impacts are financial problems, relationship problems, PDSD (prolonged duress stress disorder) and even suicide.
Victims may look normal on the surface but underneath they are in turmoil. ‘He is irrational, over-sensitive, paranoid… He misinterprets well-meant remarks by friends and family members as slights or insults—it makes him very difficult to live with.’ In such cases, the behaviour can degenerate into violence.
Bullying also impacts on victims’ families, friends and colleagues. Marriages/relationships often break down and the stress can spread to children and even grandchildren. A family’s financial situation can be adversely affected if the victim is forced to resign or takes the matter to court. Co-workers who witness bullying feel ashamed that they did not stand up for the victim, and often leave the workplace because they don’t want to be next or can’t work where bullying is condoned. Friendships dwindle, as people have limits to their sympathy. ‘It’s over,’ they say. ‘Move on.’ But many victims can’t.
Bullying costs workplaces directly in a number of ways, including lost productivity, lower performance, increased absenteeism, low staff morale, staff replacement, higher insurance premiums, fines, litigation, court fees and compensation claims. According to research by Griffith University, bullying costs employers up to $13 billion every year.
In a landmark case in 2006, a London secretary was awarded a total of $US1.5 million for pain and suffering and loss of past and future earnings from Deutsche Bank, with the bank also ordered to pay her legal costs.
The legal profession is not immune. Its adversarial nature can perpetuate bullying—legal protections for victims can be circumvented by defence lawyers, rape law disadvantages women and can victimize them further, and so on. Bullying behaviour in court is common—judge against lawyer, lawyer against lawyer, lawyer against client, lawyer against opposition client.
Eighteen-hour days and six-day weeks have been long-accepted working conditions for lawyers fresh from university, with excessive workloads and impossible deadlines the norm. ‘There are countless anecdotal ‘horror stories’… of young lawyers… being exploited and pressured to work inhumane hours for which they receive no time off in lieu, nor overtime payments.’
Though legal workplaces are no longer so male-oriented and conservative, some female lawyers still complain of discrimination: being allocated the uninteresting work, men promoted ahead of them, and being marginalised should they become pregnant. Following her return from maternity leave, one young lawyer was ostracised and excluded because she could no longer ‘cut it’; at one meeting, she was told, ‘You’ve got Mummy brain so your opinion is irrelevant.’
In a 2003 NSW Law Society survey of 1800 lawyers, 54.2 per cent of respondents reported being bullied or intimidated; 32.9 per cent of them were women.[10
Mahlab’s 2005 survey of the profession found ‘nearly a quarter of private-practice lawyers… had been the subject of bullying behaviour, including intimidation, shouting, persistent and unjustified criticism and, for nearly 70 per cent, humiliation through sarcasm, criticism or insults.’
‘One lawyer… was so browbeaten by a bully that he could not compose a basic letter without fear of reprisal; he felt that he had lost the capacity to complete a basic task.’
Firms can be reluctant to take action, despite a high staff turnover, because the bullies are often high-performing lawyers who bring in the clients. However, bullying lawyers can find themselves subject to court action. In September 2004, a Melbourne solicitor had his practising certificate cancelled and was fined $16,500 for misconduct that included bullying his articled clerk.
Bullying or stress claim investigations by insurers are rigorous and usually not accepted first up. Victims may be forced into the courts if the employer refuses to accept the WorkCover claim; unfortunately employers often draw out the process and it becomes too costly for the claimants to proceed.
Although there is no single statutory avenue for a bullying claim, victims can seek redress and claim damages through criminal, Industrial Relations, Equal Opportunity, Anti-discrimination and Occupational Health & Safety legislation.
In the 2004 Inspector Maddaford v Coleman case, a sixteen-year-old factory worker was wrapped in plastic by co-workers, rolled around on a trolley and covered in sawdust and glue. The NSW Industrial Relations Commission found that his employer, a timber joinery company, had breached its duty to ensure a healthy and safe workplace under s8 of the Occupational Health and Safety Act 2000. The director and factory foreman, though not directly involved in the incident, were also found personally liable under s26 of the Act (liability of managers and directors) and fined—the director $9,000 and the factory foreman, who was responsible for supervising employees, $12,000.
Where bullying forces a person to resign, it may be possible to claim unfair dismissal. In Dillon v Arnotts Biscuits Ltd (1997) the court found that a worker’s bullying by her boss had led to “constructive dismissal”. She recommenced work and was reimbursed for lost income.
In 2004 a Ballarat radio station was fined $25,000 for failing to provide a safe workplace and $25,000 for failing to provide training and supervision in relation to bullying; the perpetrator was fined $10,000 for occupational health and safety offences and ordered to pay costs.
The legal profession needs to promote a culture where there is zero tolerance of bullying. Firms should instigate personal development courses in communication skills, management skills, conflict resolution and stress management.
If lawyers demand more inclusive, collaborative workplaces that have open and honest communication, prioritise the wellbeing of their employees, promote work/life balance, value diversity in all shapes and forms, and where all employees, from top to bottom, are respected as ‘whole’ human beings, there will be no place for bullies to thrive.
Helene Richards and Sheila Freeman are workplace trainers and the authors of Bullying in the Workplace: An Occupational Hazard (HarperCollins 2002, HR Publications 2010). The book can be purchased online at www.sheilafreemanconsulting.biz
 Marita, by email, August 2005.
 Jacob, by email, May 2006.
 Lena, by email, September 2005.
 Mary X, speaking about her husband Peter, who was unable to work as a result of prolonged bullying. Interview, November 2001.
 2003 research by Paul McCarthy, Workplace Bullying Project Team, Griffith University, cited in The Age, June 21, 2004.
 Verrall, Jennifer, ‘Laying down the law on long hours,’ The Age, October 20, 2001
 Alice, by email, January 2007.
 Brigid Delaney, ‘Workplace bullies’, Sydney Morning Herald, August 1, 2005.
 Brigid Delaney, op cit.
 Toop, cited in Richards & Freeman, 2002, p. 233.
 Brigid Delaney, op. cit.
 LAC Lawyers, Bullying—Adults in the schoolyard, http://www.laclawyers.com.au/web/article_2639.htm
 LAC Lawyers, Bullying—Adults in the schoolyard, http://www.laclawyers.com.au/web/article_2639.htm