Below is a copy of Janet Albrechtson's irresponsible article, "That's why workplace bullying is all the rage", which appeared in The Australian on 29 December 2004. The article is reproduced here so that the text will still be available after it is taken off The Australian's servers.

Click here to read my response, unpublished by The Australian.

That's why bullying is all the rage by Janet Albrechtson
December 29, 2004

IF each year deserves a name, then 2004 is surely the Year of the Bully. After all, according to recent surveys most workers claim to have been bullied at work. Now, you won't win popularity contests by suggesting that perhaps Australia is not a nation of bullies but rather a cry-baby country. And either way it's grim news. But let's look a little closer at bullying in case it turns out to be, dare one say, a beat-up.

When workers were surveyed by the NSW Labor Council earlier this year with questions such as "Have you ever experienced bullying or intimidation in your workplace?" you could wager your mother on the outcome. Almost three quarters claim to have been bullied. And suddenly all the talk is of workplaces adopting zero tolerance policies to bullying.

It all sounds fine and fair enough until you try to define bullying. In May this year a manufacturing company was fined $24,000 for allowing a junior employee to be assaulted. Five colleagues held the 16-year-old down, filled his mouth with sawdust and glue and enveloped him in cling wrap. This has been treated as a bullying case. But surely that demeans the true nature of the offence. Let's call an assault an assault and let serious consequences flow.

But now the push is on to extend the law from physical injury - assault - to its psychological extension, bullying. To learn more about this latest legal fad, keep your eyes on the lawyers. To secure these fertile new work areas, they have devised a sufficiently nebulous, catch-all concept of bullying. Indeed, the NSW Law Society has issued a CD-ROM guide to bullying. It goes something like this. Tick the box if you've ever worked for someone who abdicates responsibility, denies failings, likes to blame others, has poor interpersonal skills, is insecure or arrogant.

Congratulations, you win bullying bingo.

You now get to choose your legal claim. You can try the state courts and make a claim under occupational health and safety laws, many of which are being beefed up to include bullying, or you can rely on state anti-discrimination laws. Or, you can head straight to the federal courts, using industrial relations laws, where the sky is your limit.

Few of us have not been harassed by a brusque colleague, intimidating time constraints, difficult work and other work-related irritants. In short, sometimes work sucks. The question is whether that should give rise to a law suit. In the black and white world of union politics where bosses are bad, unions err on the side of saying yes, encouraged by a battalion of lawyers looking for the next litigation gravy train.

ACTU assistant secretary Richard Marles says, "I think we all know what it means to be bullied in the workplace." Actually, we don't. And while those
trying to define bullying carve out legitimate actions by managers to manage the performance of employees, this is where the battles will be fought. Because, let's face it, when things don't go your way at work, it's easy in hindsight to find a series of slights that might make for a face-saving exit.

It's tempting to say that bad behaviour should be outlawed. But this is not only impossible, it is highly undesirable. Social sanctions against bullying makes sense. Legal sanctions do not. Laws and lawsuits should be saved for the exceptional, not the everyday. When the ordinary vicissitudes of life turn into a legal goldmine for lawyers and a few lucky litigants, law has gone too far. It has hamstrung our liberty, not preserved it.

Meanwhile, back in the new products department of Lawyers Inc., lawyers are rubbing their hands over the prospect of a booming new battlefield.. It is, after all, the perfect lawsuit. Start with a vague definition of bullying that soon segues into an equally vague stress claim which is virtually impossible to disprove. It's also hard to prove but doctors are all too willing to hand out medical certificates that say Joe Worker is "stressed".

Indeed, lawyers report it's uncanny how employees who know they are not up to a job soon start producing medical certificates claiming stress, making it hard for employers to sack them, at least not without a large payout.

Before we all jump aboard the bullying bandwagon, consider the standard life cycle of a legal fad and how the inflationary efforts of lawyers and judges end up backfiring on those most in need. You start out with a vague claim and a creative lawyer. That morphs into a lawsuit against someone with deep pockets, such as employers and their insurance companies. Then it only takes a few kind-hearted but misguided judges to award multimillion-dollar judgments and before you know it, employers are settling cases they shouldn't, just to avoid expensive and unpredictable payouts.

This is not crystal-ball stuff. Once lawyers get their snouts in a trough, the front trotters soon follow and inevitably the trough collapses. That's a precis of what has happened in personal injury and workers compensation. Governments were forced to step in, declare the law an ass and introduce reforms such as capped payouts. Invariably, genuine victims lose out because capped damages leave them short-changed for their serious loss.

When the reforms in NSW saw claims fall (from 20,784 in 2001 to less than 8000 last year), the legal profession cried over lost livelihoods and NSW Premier Bob Carr merrily reported "there will be fewer jobs for lawyers, but with their education they are well placed to go into retraining". Retrain they have. Just watch as lawyers continue to take bullying down the same litigious road in the new year. A happy new year for some.

Unpublished reponse to the above article:

Janet Albrechtson has made a number of factual errors in her article, "That's why bullying is all the rage".

Firstly, she states: Few of us have not been harassed by a brusque colleague, intimidating time constraints, difficult work and other work-related irritants.

Wrong. This is not bullying. Bullying is systematic and persistent abuse of either functional or informal power, not one-off or occasional nasty incidents.

Then she claims: It's also hard to prove but doctors are all too willing to hand out medical certificates that say Joe Worker is "stressed". Not true. A workers compensation claim cannot be made unless a clinical condition is indicated - usually anxiety and/or depression. If Ms Albrechtson had any experience in this area she would know that doctors' attitudes towards stress claims vary greatly - some are very strict, others are lax.

Fortunately, workers compensation law prevents workers from "doctor shopping" to get the answer they want.

It is true that there are workers out there who know all the rules and use that knowledge to slack off, virtually inviting bullying from their frustrated employers. There are also workers who will use "eggshell skull" precedents to play the victim game and avoid rehabilitating properly in order to gain or maximise payouts.

It is because of the above rorts and suchlike that bullying has not yet been formally defined in legislation.

On the other side of the coin, serious systematic and persistent psychological bullying - as opposed to clumsy supervision or one off incidents - can lead to post-traumatic stress disorder, psychological breakdown, marriage breakdown, even suicide.

Who picks up the tab for the damage that workplace bullies cause so unecessarily? You guessed it - the taxpayer.

Formally defining bullying in such a way that it minimises the chance of rorts and abuse is not easy, otherwise it would have been done by now.

However, to make no attempt to act on serious bullying stemming from corruption, sadism, personality disorders and power-drunkenness means
leaving the community to pay for expenses which should rightfully be picked up by transgressors.

For those who arrived at this page via a search engine, see site: Bullying - what to do about it?