According to Colin Biggers & Paisley partner Megan Kavanagh, the volume of cases in 2023 has climbed since the introduction of anti-bullying legislation 10 years ago.

While it’s good to see more people being made accountable for such behaviour, it raises an interesting predicament for employers who have staff being bullied – or who are the bullies.

Ms Kavanagh said the rise in workplace bullying could be put down to multiple factors.

“Workers’ compensation regulators across the country have reported increases in claims for psychological injuries. The cause is unclear: is it the pandemic’s contribution to changes in the way we work? Is it flexible and hybrid working arrangements, the impact of technology and FOMO (fear of missing out) approach to digital solutions undermining our resilience and coping strategies, including connecting with people, sleep and outdoor time? The reasons for an increase in claims for psychological injury [are] complex and multifaceted,” Ms Kavanagh said.

“The shift to online work and changes in communication methods (email/instant message versus face to face) are factors [that] have likely contributed to an increase in the perception of bullying and sexual harassment in workplaces. Such behaviours may be more difficult for managers to identify, if employees do not readily report them. On the upside, the conduct may be easier to establish where there are written records (in the form of instant messages or emails). Remote workers may also find it difficult to secure support and supervision, leading to additional stress.

“The risk of facing violence and aggression may also be increased in remote work situations, not only from colleagues [and] clients but other people in remote workplaces (including family members). Employers should be aware that they may be held responsible for incidents of domestic violence affecting their workers under certain circumstances, as exemplified in the case of Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54.”

To help decision-makers manage the rise of bullying cases in the workplace, Ms Kavanagh has laid out five tips:

1. Respect the right to legal representation

“Employers should include an employee’s advocate or legal representative (if engaged by an employee) during formal proceedings or discussions,” Ms Kavanagh explained.

“Bypassing the employee’s representative and directly contacting them, particularly when they are certified as unfit for work, can be seen as inappropriate and could harm the employer’s position.”

2. Follow policies and procedures

“Employers should adhere to their policies and procedures when dealing with disciplinary matters or allegations of misconduct,” Ms Kavanagh said.

“Labelling meetings as disciplinary meetings prematurely, when investigations are still underway, may be enough to show that the employer has denied procedural fairness.

“If you do not have procedures or policies that detail how you handle disciplinary matters or allegations of misconduct, it may be time for a review.”

3. Practice and encourage professional and respectful communication

“Employers and their representatives should maintain a professional and respectful tone in all communications with employees, especially when discussing matters related to health, performance, or allegations of misconduct.

“Rude and disrespectful language can damage the employer’s credibility and escalate the situation,” Ms Kavanagh said.

4. Ensure health and safety

“Employers have a duty of care toward their employees’ health and safety, whether they are on sick leave or working remotely.

“Employers must not create a psychosocial hazard or breach their duty of care to their employees.”

5. Take complaints seriously

“Employers must take any complaints of bullying, harassment, or misconduct seriously and follow their relevant policies and procedures,” Ms Kavanagh said.