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Work health and safety duties and dealing with bullying in the workplace by non-workers – Employee Rights/ Labour Relations


Introduction

It is common for businesses (particularly those in the service
industries) to experience bullying and harassment when interacting
and dealing with complaints from customers and other non-employee
workplace participants (‘non-workers’) in the business.

This can cause stress and anxiety for staff in the work
environment.

These issues have come to the forefront as businesses continue
to respond to the COVID-19 pandemic by implementing their own
policies and procedures for ensuring a safe place of work – and
also by ensuring that public health orders are complied with.

Key WHS Legislation

The key pieces of legislation relating to bullying and
harassment in the workplace are the Work, Health and Safety Act 2011 (NSW)
(‘WHS Act’) and the Work Health and Safety Regulation 2017
(NSW)
(‘WHS Regulations’). There is similar
legislation in other states and territories.

Section 7 of the Public Health Act 2010
NSW
(and similar legislation in other states and
territories) gives the Minister for Health broad powers to gazette
orders imposing measures to deal with the risks and consequences of
a risk to public health.

Purpose of the Work, Health and Safety Act 2011

The WHS Act provides the framework to protect the health, safety
and welfare of all workers at work, and of other people who might
be affected by the work. The WHS Act aims to protect the health and
safety of workers and other people by eliminating or minimising
risks arising from work or workplaces.

In furthering these aims, regard must be had to the principle
that workers and other persons should be given the highest level of
protection against harm to their health, safety and welfare from
hazards and risks arising from work, that is reasonably
practicable.

Under the WHS Act, a ‘workplace’ may be any place where
a worker goes, or is likely to be, while work is carried out for a
business or undertaking. This may include offices, shops,
construction sites, vehicles, ships, and aircraft.

To this effect, a client’s premises at which the provision
of a service takes place would probably be considered a
‘workplace’ to which the WHS Act and WHS Regulations.
Conceivably, if services are being provided at a private residence,
that could be a workplace within the meaning of the WHS Act.

Importantly, the WHS Act imposes duties on other persons at the
workplace. Section 29 of the WHS Act relevantly
states:

Any person at a workplace, including customers and visitors,
must:

  1. take reasonable care for his or her own health and
    safety;

  2. take reasonable care that his or her acts or omissions do
    not adversely affect the health and safety of other persons;
    and

  3. comply, so far as the person is reasonably able, with any
    reasonable instruction that is given by the person conducting a
    business or undertaking (business) to allow the
    business to comply with the WHS laws.

This WHS duty would apply to the recipient of a service when
attending the workplace, where their actions affect the health and
safety of workers in that workplace.

Primary duty of care for businesses

Businesses must ensure, so far as is reasonably practicable, the
health and safety of:

  • workers engaged, or caused to be engaged by the person;
    and

  • workers whose activities in carrying out work are in?uenced or
    directed by the person, while the workers are at work in the
    business or undertaking.

Businesses must ensure, so far as is reasonably practicable,
that the health and safety of other persons is not put at risk from
work carried out as part of the conduct of the business or
undertaking.

Without limiting the above, businesses must ensure, so far as is
reasonably practicable, the provision and maintenance of a work
environment without risks to health and safety.

The person with management or control of a workplace must
ensure, so far as is reasonably practicable, that:

  • the workplace;

  • the means of entering and exiting the workplace; and

  • anything arising from the workplace,

are without risks to the health and safety of any person.

What is “reasonably practicable” is expanded on within
the WHS Act.

What is “reasonably practicable” is to be determined
objectively. This means that a duty holder must meet the standard
of behaviour expected of a reasonable person in the duty
holder’s position and who is required to comply with the same
duty. This objective test is demonstrated by the requirement in section 18 of the WHS Act to take into account
what the person ought reasonably to know.

As part of the objective test, the courts will look at what was
reasonably foreseeable by someone in the position of the duty
holder at the particular time.

Given this, any incident such as physical or verbal abuse, or
bullying and harassment by a third party towards a worker, would
most likely be viewed as “reasonably foreseeable”, which
could result in the business being in breach of its primary duty of
care obligations.

To manage this risk, it is critical that businesses
document, action and
review incidents relating to workplace safety.
These records must focus on identifying the means to either
eliminate or minimise the current risks identified in dealing with
non-workers’ behaviour to an acceptable level of risk.

Potential bullying and harassment of workers

Whilst a non-worker is not an employee of the business, there
are times when non-workers may reasonably be expected to be present
at a workplace. It is likely that any unreasonable conduct by
non-workers such as verbal abuse, bullying and harassment of
workers could present a safety risk in the workplace.

Guidance material from Safe Work Australia
states that bullying is a hazard because it may affect the
emotional, mental and physical health of workers. The risk of
bullying is minimised in workplaces where everyone treats each
other with dignity and respect.

The WHS Act defines ‘health’ as both physical and
psychological health. This means the duty to ensure health and
safety extends to ensuring the emotional and mental health of
workers. This duty would apply to both the business and the
non-worker, as both are directly involved with the
‘workplace’.

COVID-19 has introduced a range of stressors for non-workers,
which may cause them to become agitated and lash out at a
business’s staff. This can result from businesses enforcing
site safety rules (such as mandating mask wearing or vaccination as
a condition of entry), or more generally from a change of procedure
in the business that was brought in to minimise face to face
contact between customers and employees.

The requirement for businesses to comply with and enforce public
health orders has the potential to cause stress for non-workers and
staff alike. It is fertile ground for conflict, especially where
particular groups of people feel a moral justification for
non-compliance with the public health orders and the directions
given by staff.

A different set of stressors have impacted some industries -
particularly, the health and aged care sector, where friends and
family members have had restrictions placed on their ability to
visit loved ones. Being turned away at the door has the potential
to cause friction between non-workers and those denying their
admittance.

What is workplace bullying?

Workplace bullying is repeated, unreasonable behaviour directed
towards a worker or a group of workers, that creates a risk to
health and safety.

  • “Repeated behaviour” refers to the persistent nature
    of the behaviour and can refer to a range of behaviours over
    time.

  • “Unreasonable behaviour” is behaviour that a
    reasonable person, having regard to the circumstances, would see as
    victimising, humiliating, undermining or threatening.

Bullying can also be unintentional, where actions which are not
intended to humiliate, offend, intimidate or distress, do cause
(and could reasonably have been expected to cause) that effect.

Sometimes people do not realise that their behaviour can be
harmful to others. In some situations, behaviours may
unintentionally cause distress and be perceived as bullying.

Impact of workplace bullying

Bullying can be harmful for both the workers who
experience it and
those who witness it. Each individual will
react differently to bullying and in response to different
situations. Reactions may include any combination of the
following:

  • distress, anxiety, panic attacks or sleep disturbance;

  • physical illness, such as muscular tension, headaches and
    digestive problems;

  • reduced work performance;

  • loss of self-esteem and feelings of isolation;

  • deteriorating relationships with colleagues, family and
    friends; and

  • depression and risk of self-harm.

Those who witness bullying may experience guilt and fear because
they cannot help or support the affected person, in case they too
get bullied.

Managing the risk

It can be appropriate to impose conditions of entry to your
premises, setting out acceptable standards of behaviour and
requiring compliance with work, health and safety laws. Adequate
notice of the conditions of entry is required.

If services are being provided outside of the usual workplace,
the risks should be assessed, and conditions can be imposed on the
service recipient similar to those mentioned above.

In some circumstances, additional control measures such as
increasing security by way of visible surveillance or engaging a
security contractor may be appropriate.

Public-facing staff can also be trained in how to deal with
difficult and aggressive individuals. Resilience training can be
beneficial.

To manage potentially stressful situations (e.g. complaints from
clients), processes can be put in place to ensure that workers can
re-direct certain complaints/grievances to senior persons within
the business, in order for those complaints/grievances to be
handled at a higher level.

In certain circumstances it may be appropriate to refer a
complaint to external lawyers, or the relevant external complaint
bodies – such as an industry ombudsman. If your organisation does
find itself in such a situation, we recommend getting in touch with
Holman Webb’s Workplace Relations Group to
discuss the options available to you.

A business may also rely on the general law to assist in
managing risks – particularly those on its property. Business may have recourse under the
laws of trespass and Inclosed Lands Protection Act 1901 (NSW)
(
see Adrian Robert Halliday v. Stewart Nevill &
Another (1984) 155 CLR 1
and TCN Channel
Nine Pty Ltd v Anning (2002) 54 NSWLR 333
).

If justified, a business may apply for an Apprehended Personal Violence Order
restricting access to premises, or certain staff who have been
harassed.

Lessons for Businesses

Businesses must ensure that they:

  • Identify and engage with their duties under the WHS Act.

  • Are aware of the behaviours that may cause a risk to health and
    safety – both in respect of the employees of the business, and the
    customers, agents, contractors and others who attend the
    workplace.

  • Conduct detailed risk assessments, identifying and documenting
    the risks specific to their businesses.

  • Implement control measures in response to the identified
    risks.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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