A tight-knit and collegiate team can be a blessing in the workplace, and colleagues who view each other as friends can be efficient and create high-quality work because of the rapport they have built. Banter is often an inherent part of workplaces that have a fun and social culture, but when does banter become bullying and what can workplaces do to curb jokes and jibes that are offensive?
Bullying and harassment laws in Australia
All workers in Australia are entitled to a safe workplace and this includes not being subject to bullying or harassment.
In Australia, bullying in the workplace may be substantiated when there is evidence of a pattern of unreasonable conduct, including aggressive behaviour, exclusion, teasing and practical jokes carried out by one or more employees toward another or others.
This means that name-calling, the use of slurs or derogatory language or the weaponisation of a protected attribute, such as a person’s race, religion, sexual orientation or gender, to denigrate the individual in the workplace – even if the perpetrator believes it to be ‘banter - could be considered bullying, not banter.
If a pattern does not exist, for example, an employee complains of a one-off racial slur made towards or about them, the perpetrator may also be reprimanded in line with the organisation’s bullying and harassment policy, such as through the issue of an official warning.
Harassment is classified as behaviour where it would be reasonable to expect that there is the possibility the employee who is being sexually harassed would be offended, intimidated or humiliated by the behaviour, which means comments or jokes of a sexual nature that the perpetrator may consider to be banter, may actually be harassment.
Banter versus bullying - the Fair Work Commission’s perspective
Where bullying and harassment claims have been brought to the Fair Work Commission (FWC), and the perpetrator has attempted to justify their behaviour as banter, the FWC has not accepted that the behaviour was acceptable.
Although the issue of workplace culture and that a level of inappropriate behaviour (including the use of racial slurs, sexually-charged language and other derogatory names) has been used as a means to justify the conduct, the FWC has concluded that poor workplace culture does not excuse the behaviour. Therefore, the employer should continue to set the standard of acceptable conduct during both work hours and out of hours (including on social media) to ensure employees understand the distinction between friendly behaviour and bullying.
How can employers raise workplace standards to avoid bullying and harassment claims?
In a post-COVID world, employers are turning their attention to workplace culture, well-being and building cohesive teams. When encouraging socialising amongst workers, employers should be careful to ensure that standards do not slip in a way that means the line between banter and bullying is blurred.
It is common for team members to interact on social media and in-person during both business hours and after work, however, a workplace’s acceptance of bullying behaviour not only causes harm to the victim but can also put the employer at risk.
Employers should take appropriate steps to equip their employees with information about the workplace culture and what behaviour is deemed appropriate and inappropriate from the outset. The perfect time to set the standard is during the onboarding process. If the current cohort of employees has been with the organisation for a number of years a policy refresh and relaunch, as well as training and information sessions about appropriate workplace behaviour, can be run to remind all of what is expected of them. Most importantly, senior leaders should be expected to set the tone by calling out poor conduct and following disciplinary processes for those who do not comply with workplace bullying and harassment laws.
If you need advice on a matter of bullying in the workplace, contact us today to find out how our employment lawyers can assist.