Bullying and harassment are often used interchangeably in many Australian workplaces. They are often treated as two sides of the same coin. However, as an employer the two concepts are separate and distinct.
Understanding what harassment is, and how it differs from bullying, will assist any employer in identifying, managing, and responding to poor behaviour in the workplace.
Workplace bullying refers to repeated unreasonable behaviour directed to an employee or a group of employees that creates a risk to their health and safety.
Harassment is unwelcome and unsolicited behaviour that a reasonable person would consider to be offensive, intimidating, humiliating or threatening, because of a certain (protected) characteristic of the employee.
While bullying is defined as repeated behaviour, a single action may be considered harassment. For example, if a single joke is told at the expense of someone’s protected characteristic, the joke may be considered harassment, but many jokes would have to be told for it to be considered bullying. It is important to note that the repeated jokes at someone’s expense could be considered both harassment and bullying.
Behaviour that could be considered harassment includes:
staring or leering
suggestive comments or jokes
intrusive questions about a person’s private life or body
insults or taunts
The National Employment Standards, which cover most employees in Australia, provides a list of protected characteristics arising from anti-discrimination legislation. Discrimination occurs when a person, or a group of people, are treated less favourably than another person or group because of their background or certain personal characteristics.
These characteristics include:
physical or mental disability
family or carer’s responsibilities
Bullying does not necessarily constitute unlawful discrimination under the Fair Work Act unless the behaviour can be shown to be adversely linked to an attribute listed above. There may also be federal, state or territory legislation that provides further protected characteristics, such as Victoria’s Equal Opportunity Act 2010 that provides ‘physical features’ as a protected characteristic. This means a joke about someone’s weight may be considered harassment in that state.
Why the Difference Matters
Bullying and harassment are covered by different legislation. This may affect how an employer should respond to bullying or harassment allegations.
Bullying is covered in workplace health and safety (WHS) legislation, giving the employer an obligation to ensure a workplace free of bullying as reasonably practicable. Harassment on the other hand is covered by other legislation – such as anti-discrimination legislation – that provides the employee more avenues to escalate their claim, in the case they choose to do so.
Further, someone doesn’t have to actually possess the protected characteristic that is the subject of harassment to make a harassment claim. For example, a heterosexual employee who has been subjected to homophobic slurs. A complainant doesn’t necessarily have to be on the receiving end to make a claim of harassment; in this instance, a customer overhearing the homophobic slurs could make a claim.
Policies are Important
The best thing employers can do to protect their business and their employees from bullying and harassment is to implement sound policies. These documents can help communicate the difference between bullying and harassment, the complaint, investigation and resolution procedures that will take place in the event of the claim, the potential outcomes, and any confidentiality and support measures in place for the complainant.
Employsure and Bright can assist you in producing, implementing, storing and sharing any workplace policy you may have. For further information, please get in touch now on 1300 651 415.
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