Tooma bullying 2013At the Safety Show this afternoon, prominent Australian labour lawyer, Michael Tooma, spoke bluntly and confrontingly about workplace bullying in front of several hundred trade show delegates. For those companies who value a safety culture or are trying to create one, Tooma stated that if work colleagues do not stand up to bullying or report bullying as the OHS issue it fundamentally is, they are condoning the bullying.

Tooma also applies the “duty of care” broadly and says that the application of the duty of care does not sit with one person or an organisation. Each individual in that organisation has a duty of care to others and by not taking action on bullying or considering it “none of our business”, they are breaching their OHS duty of care.

In some ways, Tooma seems to be reminding people of the pivotal role that work health and safety (WHS) laws and obligations play in the humanity of an organisation. It is very sad that such a reminder is required but OHS/WHS is struggling to retain its prominence as it is diluted by an increasing range of other business considerations, such as risk management, governance, cost control, human resources and others.

Tooma also said that one of the impediments to effective management of bullying is that

“we bandy the word around as if it is candy… We use it as a weapon instead of what it is – a serious concern”.

People apply bullying to conduct which is clearly not workplace bullying. The conduct may be undesirable and inappropriate and needs to be addressed but calling such activity as bullying can generate a lot of additional problems that make the hazard management more difficult.

Tooma identified the following categories that workplace bullying could legitimately be included under:

  • Work Health and Safety
  • Workers’compensation
  • New Federal Anti-Bullying
  • Contract
  • Negligence
  • Federal Adverse Action
  • Unfair Dismissal
  • Anti-Discrimination
  • Crimes Act
  • Brodie’s Law

Each of these categories represents an avenue for remedy for the victim of bullying but are also areas of which business operators and PCBUs must have a very basic understanding.  On this one workplace hazard alone, there is a complexity for management and although it can sound glib, this complexity is also a powerful reason for eliminating the hazard of workplace bullying before any of this complexity is realised.  This complexity can be even worse when objectionable employee actions are misconstrued as bullying.

Tooma stressed that workplace bullying IS an OHS issue and the “ownership”of the issue should not be given up to other business management areas that could be less equipped to handle the issue. He said that poor conduct could be considered a “near miss” on workplace bullying. Tooma said that if bullying was treated in the similar context to more traditional workplace hazards such as guarding, instances of bullying would be more readily reported and definitely more thoroughly investigated.

He expanded on this theme by saying investigations of bullying by the employer or PCBU often end when the individual parties enter mediation or a dismissal occurs. Problem gone does not equal problem solved. An investigation of workplace bullying could reveal systemic management issues that may have existed for some time but have manifested in this particular case. Therefore the root cause, the systemic hazard, is not addressed and this could lead to a recurrence, further psychological harm and additional breaches of one’s duty of care.

Yes Tooma is a lawyer but today he spoke not as a lawyer but someone who passionately believes in achieving justice for the victims of workplace bullying and to reducing the likelihood of bullying occurring in the first place.  As a result his comments resonated strongly with the hundreds of people crammed into a hot room in the convention centre.  We need to wait and see whether the “take-aways” form the seminar turn into action by the audience.

Kevin Jones