Lawsuit highlights company bullying obligations

ELIZABETH JACKSON: The issue of workplace bullying is again in the spotlight this morning, with the launch of a lawsuit worth more than $9 million against one of Australia’s most prominent clothing companies.

A former senior executive at Pacific Brands, Sally Berkeley, is suing the company and its general manager Ross Taylor. A statement of claim lodged with the Federal Court in Melbourne, alleges Mr Taylor swore, used his large physical presence, and slammed his fist into office furniture, to bully her – and others.

Pacific Brands, which manufacturers Bonds, Berlei and Dunlop, describes the claims as baseless. But workplace lawyers say it highlights the need for boards to be aware of workplace behaviour.

Our reporter Lexi Metherell has been speaking to a senior associate at Turner Freeman lawyers, Sian Ryan.

SIAN RYAN: Bullying is a really difficult issue. There aren’t any statutory regulations about bullying, so you won’t find much to most people’s surprise, a law about bullying.

People of course are employed under contracts of employment that would have some broad statements about acceptable behaviour in workplaces and there of course is discrimination law so you can’t be treated adversely because of your race or your religion or your sex and disability, etc. But bullying or behaving badly towards your co-workers is not actually the subject of any kind of formal law or regulation.

LEXI METHERELL: Should it be?

SIAN RYAN: The issue really is that bullying is so subjective. So person’s claim of bullying is not the same as another person’s claim of bullying. It would be very difficult I think to regulate very strictly about it. But of course legislators always face challenges and as I said from a damage point of view I think it should be.

LEXI METHERELL: So what part of the law can employees rely on if they do want to take legal action if they feel that they have been in some way harmed by bullying in the workplace?

SIAN RYAN: I think it’s accepted these days that every contract of employment has an implied term that the employer is to provide you with a safe workplace. So a workplace that is free from harm to you and arguably if an employer allows somebody to be bullied or bullying is going on in that workplace that would be in breach of that implied term, that the workplace is a safe one and that you would not be subjected to conduct that is likely to harm you.

Otherwise of course there is the occupational health and safety law but that requires WorkCover to prosecuting in New South Wales but it doesn’t given the individual any standing.

I would say that the success rate is mixed largely because it’s such a subjective area. So there are some very, very strong cases. There have been some litigated cases, Naidu was a big one, an individual really was subjected to awful treatment over a long period of time and it took a great toll on his health and he recovered a very significant amount of damages.

There are others of course that were dealt with more in a dismissive manner by the courts because as I said bullying really is a subjective area and it’s up to the individual claimant to prove the elements of their charge if you like.

LEXI METHERELL: Now in this Pacific Brands case the claimant is also seeking punitive damages against the company alleging that the company should have been providing her with a safe workplace. What responsibilities do boards have to ensure that their company is a safe place to work?

SIAN RYAN: Well ultimate authority would rest with a board and we’re going to see this even more so. We’ve got new occupational health and safety laws coming in 1 January next year and there will be far more individual responsibilities on members of boards.

But they ultimately oversee responsibly for OH&S so that if there is a workplace that is unsafe, if there is conduct that is being tolerated, particularly if it’s known, particularly if it’s repeated, and that kind of conduct ultimately is the subject of allegations of harm, then yes boards could be responsible for that and you may in fact see individual board members held responsible for that if they know about it and they don’t take proper action.

ELIZABETH JACKSON: Senior associate at Turner Freeman lawyers, Sian Ryan, speaking there to Saturday AM’s Lexi Metherell.

Reference: abc news

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