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(NB. Legal references pertain to NSW, Australia but much of the information on this page is universal)
Important: The material on this site is NOT legal advice and does not replace advice given by a lawyer.
If your boss is bullying you (especially subtle bullying) and has Management backing, and you are not a member of a union or have a level of group support, you are in a very challenging situation, especially if the bullying is covert. You may succeed in having your boss prosecuted, and even be paid a small sum of money. But you may also end up without a reference, and perhaps a vindictive former employer who will advise other employers in the industry "don't employ that troublemaker".
That's why this site has so much self-help material and encourages union membership. If you can solve the problem with good support, sensible tactics and a professional approach - either negotiating with the employer or finding a job where you are valued - you may well be better off than if you "call in the cavalry". See the "Bully-proof yourself" page for more on this approach.
Bullying is a difficult problem for authorities to solve because of its intangible and transitory nature, and it's not uncommon to be bounced between different public agencies, each believing that another agency is better equipped to handle the problem.
There is no specific legislation in NSW dealing with workplace bullying and once a bullying incident has occurred, only the memories remain. It helps if those memories are held by others apart from you - people who can back up your story.
Being aware of your legal rights can act as a useful bargaining tool. Not all employers are aware that there are now laws covering bullying per se, and and element of bluff can in some cases be effective. For example, some people have claimed that a letter from their lawyer to their employer has made a difference - but it could also exaserbate the problem. That's where your own - and the lawyer's - judgement comes in.
According to the abovementioned statistics, speaking to your personnel office, the bully's boss or co-workers may cause more harm than good, although this depends on the individuals involved and the corporate culture. Be aware that even your co-workers can turn on you, especially if they fear for their positions or feel they can improve their standing with Management by distancing themselves from you. Or they may perceive you as being the problem, and your complaints as disruptive. So choose your confidantes carefully.
If a union is available, one thing you can do to help yourself is to join it. At the very least they can act as witnesses if you meet with Management about the issues. It's often in your interests to have a witness present, whomever it may be, if attending such a meeting. Menu
When discussing any single incident, it helps to refer repeatedly to the pattern of which this incident is part. Small incidents build up. In isolation they may not seem likely to constitute bullying, but courts do take the cumulative effect of these incidents into consideration (including glaring, snubbing, and other "intangibles").
The diary should contain as much detail as possible, and entries be made as soon as possible after they occur, while they are fresh in your mind.
Keep copies of relevant correspondence. They may be seen as evidence in a court or with a conciliator. Hopefully, you won't need the diary and / or emails for a court case.
There don't appear to be any caselaw examples, at this stage, of bullying prosecutions in NSW for cases that don't involve either the most gross and outrageous abuse, such as initiation rites for apprentices, or attacks on members of target groups as defined in anti-discrimination legislation such as sexual harassment or discrimination based on sexuality or race. It is extremely difficult to fashion a legal response to subtle bullying like glaring, white-anting or malicious gossip unless accompanied by more overt attacks.
However, employers are not always aware of the above, which can help your cause. More than once a letter sent to an employer by a bullied worker's solicitor has prompted Management action. Sometimes it's a matter of bluff.
Keep the diary
in a safe place, perhaps with hard or floppy disk copies kept at home.
There are a number of instances where bullies have ransacked
the recipient's desk when they suspect that such a diary is being
If you do not make a grievance Senior Management may argue that they were not made aware of the problem, and therefore could not be expected to take action against it. Still, if the arbiter believes that the culture of the organsation was such that making a grievance would be a fruitless exercise, then you can be excused from doing it (there is a least one legal precedent in NSW for this, a prosecution under the Anti-Disrimination Act). Silence on the part of the recipient is not necessarily taken as acceptance of bullying behaviour.
If you are to meet with Management about the issues, you might want to have a witness sit in with you. Union representatives can be helpful for this purpose. Menu
As well, you will need a WorkCover Medical Certificate, provided by a GP, if you wish to make a workers' compensation claim. For physical assault, photographs should be taken of any injuries as soon as possible, and verified by a responsible person. These issues may be referred to the Police, especially if there are physical signs of the assault.
Under the NSW Anti-Discrimination Act 1977, people cannot be lawfully discriminated against due to:
These usually take the form of "constructive dismissal", where it is deemed that the employer has breached the contract of employment. Early legal advice should be sought because there's no financial support for those making constructive dismissal claims and the payouts have tended to be modest at the time of writing. Note that it's not uncommon for these claims to be knocked back.
If you are considering making an Unfair Dismissal Claim in NSW, you should act early because the claim must be made within 21 days. Unfair Dismissal Claims can be made via the Dept of Industrial Relations (Ph: 9258 0008) - see the OIR website, for more information. Menu
The medical certificate cannot cite "stress" as a reason for the claim, but must specify the symptoms in accepted medical terminology, eg. anxiety, depression etc. Stress claims cannot be made for the following "reasonable action" on the part of your employer: transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal. (As per s11A of the Workers Compensation Act 1987).
Making a stress claim can be stressful in itself, so it's a good idea to have medical and legal support (as per above link to The Law Society). A stress claim can have a significant impact on your employer's insurance premium, even if declined, so you may face some resistance. However, this may also attract the attention of Management if they had previously been reluctant to get involved.
Be aware of your rehabilitation rights and responsibilities (see WorkCover NSW website) if your claim is accepted, and it can be helpful to have sound legal advice before signing anything contentious.
Your employer's insurance company may send you to one of their medico-legals for a second medical opinion, which will determine whether your claim is accepted or not.
Having a witness with you during such appointments will help you to ensure a fair hearing. If your claim is denied, you can contact Claims Assistance Service of WorkCover NSW for mediation.
You may wish to seek legal advice if your claim is declined, the good news being that at the time of writing in NSW legal expenses incurred for this reason are not charged to you, although limits may apply. Generally, the biggest problem with this approach is that lawyers can only charge the Scheme up to a certain limit, so if a case drags on for too long, some lawyers will simply stop representing you.
For this reason, it's essential to be well-organised and be prepared to do some of the "research work" yourself if you can. This, and harnessing your emotions during consultations, will help to keep legal costs to a minimum. Menu
Legal Information Resources
If someone threatens to assault you, you should ensure that you do not give them permission to do so by saying "Don't touch me" or the like. Never say, "Go ahead, make my day" or other such incitements that could be construed as permission.
If you are assaulted at work, this is a Police matter, and it should be reported to them, as well as your employer (do this in writing), as soon as possible. You will require evidence if you are to have an attacker prosecuted, and if you have a witness, all the better.
Colour photos taken of the injuries can also serve as evidence. You should go to a doctor or hospital to have your injuries treated and recorded.
Section 85ZE of
Crimes Act 1914 - "Improper use of carriage services"
refers to the use of a telephone and, perhaps, email ("service
for carrying communications by means of guided and/or unguided electromagnetic
energy") in menacing, harassment or offensive way. Menu