The correlation between bullying and discrimination in the workplace

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Bullying and discrimination happens in a number of places, including the workplace. Regardless of whether its form is direct or subtle it can affect a person’s work over a period of time.

We can define discrimination in simple terms as the unjust and prejudicial treatment of different categories of people, based on particular attributes.[1]

In Australia, the Commonwealth discrimination legislation is spread across various statutes, depending on the type of discrimination alleged.  For example, the Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of sexual orientation, gender identity, intersex status, marital or relationship status.  The Racial Discrimination Act 1975 (Cth) prohibits discrimination on the basis of race.  The Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth) allows the Commission to resolve complaints of discrimination related to sex, disability, race and age.

In Queensland, the state legislation applicable is the Anti Discrimination Act 1991 (Qld). Section 6 of the Queensland Act prohibits discrimination on the basis of the following attributes: sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, trade union activity, lawful sexual activity, gender identity, sexuality[2], family responsibilities; and association with, or relation to, a person identified on the basis of any of the above attributes.

The legislation generally refers to two types of discrimination, direct discrimination and indirect discrimination.

What is the difference between Direct and Indirect discrimination?

Direct discrimination is where a person treats, or proposes to treat, a person with one of the attributes less favorably than a person without one of the attributes. 

Indirect discrimination on the other hand is more subtle and occurs where a person imposes, or proposes to impose, an unreasonable term or condition with which a person with an attribute is not able to comply. 

Bullying in the workplace

This occurs when a person or a group of people repeatedly behave unreasonably towards a worker or a group of workers and such behaviour creates a risk to health and safety.

Bullying becomes associated with discrimination when bullying conduct towards an employee or a group of employees is repeated and unreasonable behaviour based on an attribute of the employee(s).  An example of this is a worker making repeated derogatory racial remarks at his co-worker because the co-worker is Indian (thus isolating the co-worker on basis of race/ethnicity), and such remarks causes stress, anxiety and sleep disorder to the co-worker.

There are cases Queensland where bullying behaviour often associated with discriminatory behaviour have been compensated. We refer to the following cases as examples:

In Nunan v Aaction Traffic Service Pty Ltd [2013] QCT 565, a female traffic controller was sexually harassed by a male co-worker over a 5 month period.  The complainant suffered an emotional breakdown and major depressive disorder due to personal comments and questions of a sexually explicit nature, banter (for example, “what colour are your pubes?”), sounds and gestures.  Although the matter was settled with the corporate respondents, this did not release the individual respondent (and the cause of the bullying behaviour) from liability.  In this case, the individual respondent was liable for the difference between the award and the amount already paid by the corporate respondents.  The total award was $102,217.00

In Singh v Shafston Training One Pty Ltd [2013] QCAT 8 (8 January 2013), the complainant was a student at a hospitality college.  The head trainer made comments about his national origin, swore at him referring to his race (“f***ing Indians”), called him other derogatory race-related names, told him ‘go back to your country’, gave him menial tasks and refused to sign off on final statement of competency because of an earlier discrimination complaint made against the head trainer.  The complainant was also mocked and called ‘Rudi’, which is an insulting term in Punjabi).  The Tribunal found that this was direct race discrimination in the areas of education and goods and services.  As a result, the complainant was refunded his course fees and general damages of $3,500.00 were paid for each area of discrimination, vilification and victimisation.  The complainant received a total award of $33,287.00.

In Mitchell v Regional Community Association Inc [2013] QCAT 264 (6 June 2013), a permanent part time worker in a mental health outreach program took 12 months maternity leave.  When she provided her employer with a proposed return to work date, she found that the organisation had restructured and her position was made redundant.  The organisation claimed that the employee’s employment was only for the life of the funding agreement.  The Tribunal found this was direct discrimination on the attribute of pregnancy and awarded the complainant $4,500.00.

Bullying behaviour within the workplace should be treated seriously. It is unacceptable behaviour, and professional advice should be taken and considered.

It is important to note that although this article focuses on bullying in the context of discrimination the legal protections in relation to bullying are not merely limited to just anti-discrimination laws.

Bullying in the workplace occurs in various other forms, and other types of protections and penalties are afforded under different legislative regimes such as the Fair Work Act 2009 (Cth).

The range of available recourse and remedies are also wide, with penalties potentially available under the Work Health and Safety Act 2011 (Qld) and in certain circumstances, a wide array of common law damages. For example, should the workplace bullying result in a psychiatric injury, the bullied employee may be entitled to significant awards of damages pursuant to a personal injury claim (for example, past and future economic loss awards).

If you have been affected by bullying and discrimination in the workplace, contact us

The wide experience and knowledge of our team of Brisbane Employment & Discrimination lawyers can ensure that you are legally protected, and that any prepared claim is appropriate based upon the right cause of action to achieve your needs. Call (07) 3252 0011 and speak with one of our client engagement team to make an appointment today.

This article was written by Heilala Tabete and James Tan.

[1] Oxford Dictionary online at www.oxforddictionaries.com/definition/english/discrimination

[2] Defined to mean homosexuality, heterosexuality or bisexuality