Surviving, and beating, workplace harassment

Posted on February 4, 2013. Filed under: Uncategorized |

Below is an article on bullying published in the Canberra Times this morning.  In particular, it suggests their are approaches other than the Work Health and Safety legislation which might be open to victims of bullying including a breach of article 7 of the International Covenant on Economic Social and Cultural Rights as well as the potential criminal implications of bullying which are intended to injure.

Then again, it can be very difficult to get the Human Rights Commission to investigate any breach of human rights where that breach involves a government agency.

Surviving, and beating, workplace harassment

February 5, 2013

Kathryn-Magnolia Feeley

Victims of workplace bullying have a far wider range of legal avenues to protect their rights to work safely than may be apparent, including international human rights law.

jpc000617.004.002.  for GENERAL NEWS.  photo by JOE CASTRO.  THE AGE.  MELBOURNE.  Generic Photo of young man under a lot of stress at a work environment.   For story on suicide. stressed , pressure , work ,Bullying often leaves its victims with a feeling of intense fear, helplessness and horror of the workplace. Photo: Joe Castro

A toxic workplace is a dangerous workplace. When bullying is tolerated or has become a part of a workplace’s culture, that workplace is negligent in its responsibility to protect the safety of staff. The employer is then liable to pay you compensation if you are injured as a result of working in such a toxic environment.

Here’s a recent case of an Australian workplace falling foul of the law for failing to prevent bullying. Five men had grabbed a 16-year-old factory worker and wrapped him in cling wrap from neck to feet, shoved him into a trolley, and then pushed the trolley to the edge of a four-metre hole. These ”workmates” then gagged the boy, smeared sawdust and glue on him, and then turned a fire hose on him. Sometime later, the foreman cut him loose. The managers said nothing to the bullies; they didn’t see a problem.

If a gang at work conspires to injure you, they may be committing a serious criminal offence – conspiracy to injure – in addition to bullying.

That culture of initiation and a ”bit of fun” is bullying. The boy who suffered from those injuries eventually received compensation from the company.

His was an obvious workplace injury, but some bullying involves what is known as ”symbolic violence”. It is subtler, but as dangerous and destructive as the more obvious tactics of bullies.

Workplace bullying often leaves its victims with a feeling of intense fear, helplessness or horror of the workplace. The most common reactions to bullying trauma are flashbacks and a constant sense of reliving the distressing experience.

Bullying is not your ”perception”, nor is it merely the fact that some label you as ”sensitive”. It is a power play: bullies like their victims to know that they, the bullies, have the power and they are smug in their knowledge that you will do nothing about it.

However, your workplace should not be a battlefield. You have the right to be safe. Australian laws, as well as the United Nations’ human rights charter, enshrine workplace safety.

One reason workplace bullying victims find it difficult to seek help is they are afraid they will be seen as a weak person who is unable to cope. Yet research shows that victims are usually ”competent, successful, confident and qualified, in contrast to bullies who are weak, jealous and lacking in confidence”. Bullies seek to weaken their victims through one-on-one tactics to break the victim’s spirit. Co-workers who may be jealous of the victim could also collectively act in mobbing activities as sycophants of the bully to weaken or even destroy the victim. If a gang at work conspires to injure you, they may be committing a serious criminal offence – conspiracy to injure – in addition to bullying.

Public servants

Following is an extract from the Australian Public Service Commission’s workplace harassment guidelines. It is, no doubt, typical of the defence usually used by governments and corporations.

Workplace harassment must not be confused with legitimate comment and advice (including relevant negative comment and feed back) from managers and supervisors on the work performance or work-related behaviour of an individual or group. Feedback on work performance or work-related behaviour differs from harassment in that feedback is intended to assist staff to improve work performance or the standard of their behaviour.

You are entitled to ”quiet enjoyment” in your workplace. The UN enshrines safe and healthy working conditions. Workplace injuries that are caused by harassment are a result of unsafe and unhealthy working conditions.

If you are bullied or harassed while working in a government department in any country that is a member of the UN, consider invoking article 7 of the International Covenant on Economic Social and Cultural Rights. If the government does nothing, it will have breached its UN obligations.

You must inform the most senior official possible (the prime minister, department head, etc). It is important that you, the injured person, are not swept sideways to a ”harassment awareness officer” to resolve the matter. These officers at usually attached to human resources teams and their job is to ensure that staff have the mandatory training and do not make waves by ”going to the top”. In fact, it is forbidden in some large organisations for employees to do so. However, those who ignore that directive and go directly to a minister or department head are given priority attention, so as to avoid a costly court case.

Any government employee in a country that is a UN member can rely on article 7, which says:

The states to the present covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular … safe and healthy working conditions.

Therefore, injuries caused by workplace bullying or harassment in a government department that are ignored by ”the top” will result in that particular country breaching its UN obligations.

Australia’s federal World Health Organisation Act says: ”Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” The act obliges Australia to attain the objectives of the WHO – that is, for all people to attain the highest possible level of health. Workplace bullying and its subsequent injuries therefore contravene the objectives of the WHO, of which Australia is a member. This argument can be employed if you are in the armed services, a public servant or an employee of any other government organisation. And remember: if ”the top” is made aware of the bullying behaviour and its consequences, the person who reports the behaviour is less likely to be victimised.

Kathryn-Magnolia Feeley is a Canberra lawyer. This article contains edited extracts from her book Workplace Bullying Survival (Smashwords, 2012), which describes alternative legal avenues for bullying victims.

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