Research Portfolio Physical Violence

Question: Discuss about theResearch Portfoliofor Physical Violence. Answer: Introduction Work place bullying involves an incongruous character that is done repeatedly towards an employee or a worker of a certain place in the organization. The definition of bullying in Australia has been widened to include acts like sexual harassment, physical violence, intimidation and remarks that may injure the reputation of an individual. It is important to note that the act must be one that is done repeatedly. During this research it was discovered that workplace bullying is a vice that many Australian workers endure in their workplace with the fear that when they take legal action or report the matter to the relevant authority they will likely lose their jobs. What is more is that work place bullying has been prohibited and rendered unlawful by the Occupational Safety and Health Act 1984, and the Occupational Safety and Health Regulations (1996). The rationale behind it prohibition is that it is deleterious on the performance of the employee at work and may also affect the safety and health of the worker. Suffice to say, workplace bullying has taken various legal forms in Australia as one may pursue a legal action or a criminal action. The Equal Opportunity Act 1984 criminalizes sexual harassment and acts of assault that amount to physical violence. In this research one will discover that the tort liability that flows from workplace bullying stems from the fact that the employers owe the employees a duty of care to ensure that the environment they are working is safe and their health is also not in danger. The challenges of coming up with a conclusive finding from the employees in the Australian workers is that most of the employees fear retaliation from their employers and they argue that in as much that they may want to make a complaint the reality on them is that no or less action is usually taken against the perpetrators. The workers thus shy away from giving up information concerning bullying on the workplaces. On the other hand there has also been no much jurisprudence that has been entrenched by the courts concerning work bullying this has made the research on this vice tremendously complex. Reflections and Comments It has been discerned that bullying has gained much prominence in the Australia workforce than more than sexual harassment cases and racial discrimination. To this extent it is advised that the lawmaker should give rise to formidable legislations that will ensure that they address this burgeoning phenomenon within the workplace. It has also ben observed in Mount Isa Mines Ltd v Pusey (1971) that if an employee is bullied at the workplace this amounts to a breach of the duty of care that is owed to employee by the employer and therefore tis raises an action in tort. In this case the employee will be required to show that they have suffered as a consequence of the breach of duty by employer and that the harm that has been suffered was one that was foreseeable in those circumstances. This seems to be unfair to the employee because it places an onerous task on the employee to evince liability of the employer. What seems preposterous and abhorrent is that an employer can be vicariously li able fro the bullying actions another employer. The challenging question embedded here is what scope of bullying can be said to be within the ambits of an employees normal duty. It is worth mentioning that the courts in have stated that the employer will not be vicariously liable where the actions of the perpetrator are outside the mandate permitted within the scope of employment. It seems to me action at the workplace may appear to be harassment or discrimination according to the claimant, such as shifting of positions of authority and precipitous demotions, but this may have been done out of necessity at the work place. In this sense it has been agreed in the case of Wilkinson v Downtown (1897) that where bullying causes emotional distress such as nervous shock, the claimant will be entitled to an award of general damages. The requirements for such a claim have been set in the aforementioned and it states that the bullying must have been a willful act that was intended to cause harm and it ultimately actually causes harm to the claimant. These requirements have arouses a magnanimous legal content and cause a lot of convolution within the legal firmament but they were affirmed by the court in the recent case of Nationwide News v Naidu (2007). In my view the burden of proof in claims of work bullying should shift to the perpetrators so that they the task is on them to show that there actions did not amount to bullying. Analysis and Conclusion It is thus a plausible conclusion that in work place bullying cases the employer is always under threat of a possible action that emanates from the law of contract. It is the general rule that in contract law cases there is always an implied condition that the work premises and conditions of work will be safe for human use. The employee I this case can thus sue for a breach of the contract term. This researched has presented a breadth of options that can be used as avenues by the employees to bring their claims for bullying in the workplace. However, what still remains a conundrum is the legal cost of pursuing such actions that claimant invariably fail to raise and therefore they have to continue enduring the torture that they are subjected to at the workplace. The path to finding justice for a claimant who has suffered from bullying at the workplace is usually murky and tumultuous because of the opposition and difficulty that is mounted by the employers. Essentially the claimant in this case are left basking in the rays of injustice as their actions against their employers or superiors at work never see the light of day. It is important to note that in most instances the perpetrators of these acts of bullying are the superior employees of organization as has been observed and analyzed from many cases. It can be concluded that it is absolutely imperative there be a legal reform in the laws that protect the employees and other staff employed in any organizations from the unfair practices egregious conduct of other people in the workplace. Legal Risks, Rules and Management The management of any organizations should be aware of any legal risks that are available when they fail to comply with the obligations that have been given to them by legislations and the doctrine of common law. Such legal risks that they face include actions for the tort of negligence and such the organizations should ensure that they assess such a risk and in doing so they should ask whether they owe a duty of care and endeavor to know circumstances in which this duty of care may be breached. The management should thus be able to formulate rules and create a formidable mechanism that will help in mitigating such a risk. In addition the management should also be able to formulate rules that will ensure that they comply to the standards that have been set in the Fair Work Act (2009) and other pieces of legislation. Annotated Bibliography Relevant Textbooks Stewart, Andrew Stewarts Guide to the Law of Employment. The Federation Press, 2009. Print 246 This was very instrumental in the research as it outlined the various acts that will amount to bullying the workplace. To be specific at page 246 it gave the various acts that amounts to discrimination at the workplace and also highlighted the various laws in Australia that prohibit the vilification and harassment of employees. Creighton, Breen and Rozen, Occupational Health and Safety Law in Victoria.(The Federation Press, 1997. Print p 68 The book was able to guide on a perceptible understanding of the relationship between work place bulling and the liability imposed by a Tort law action. At its page 68 it was clear that the employers in the work place have a duty of care to ensure that the employees are safe and are protected from unsafe conducts such as bullying. As such the book was instrumental in showing the elements that that is required to prove vicarious liability on the employer for an action that was done by another employee. McCarthy et al Bullying: From the Backyard to the Boardroom. The Federation Press, 2001.Print p 1, 15 The books has manifested a clear picture of the causes of bulling and has played a fundamental role in in this research to bring out the key aspect that circumnavigate work place bullying, Essentially it has been noted in the book that perpetrators of bullying are in most instances individuals within the organization and the social group at large. Relevant Academic Journal Articles Stale, Einarsen et al Bullying and Harassment at Work and Their Relationships to the Work Environment Quality: An Exploratory Study European Journal of Work and Organizational Psychology (1994) 381. Print The above journal has given the reasons that cause work place bullying and it has noted that envy is a major contributing factor of bullying because in some instances there are employees who perform better than others and thus the other colleague feel intimidated by this fact. This piece of work has contributed much to this research in creating a better understanding and the legal mechanisms rules that are in place to ensure that bullying is mitigated within the organizations. Darcy, McCormack, D., and Casimir, Gian . Workplace bullying and intention to leave: the moderating effect of perceived organizational support. Human Resource Management Journal, 18(4) (2008): 405422.Print This paper brought out a better comprehension of bulling from the view of women in the employment field. It basically highlighted the fact majority of the victims of work place bullying are women and it insisted on the need to create steadfast and impartial laws that will protect women who are a vulnerable group in the work places. Other Materials Beyond Bullying Association Inc. (n.d.). Beyond bullying. Retrieved October 10, 2016, from: https://cwpp.slq.qld.gov.au/bba/facts.html This internet source article explained the concept of psychological harassment and bulling at the workplace and the legal implications that attach. Community Public Sector Union. (2002).How to reduce workplace bullying. Retrieved October 10, 2016 from: https://www.cpsu.org/ohs/bullying.htm This source was instrumental to the research as it gave a clear understanding of how bullying can be reduced at the workplace and the strategies that should be put in place by the management to mitigate any risks that may be available Mannix, McNamara, P. Address Workplace bullying: Critical reflections and the problematic of culture -a discussion. (2004) Paper presented at the Adelaide International Workplace Conflict Conference, Adelaide, Australia .April 21-23 2004.Address The paper gave a background discussion of the reason why we have bulling in the work places and it explained clearly the different form of bulling that are found in work places together with legal protective mechanisms that have been put in place to protect employees in Australia. Cases and Legislation Aaron, Rathmell. and Michaela, Whitbourn, Wilkinson v Downton at Work: Employers Liability for Intentionally Inflicted Psychiatric Injury Australian Journal of Labour Law (2008): 347. Print The above explained the case of Wilkinson v Downton [1897] EWHC 1 (QB) in an in-depth perspective. It was helpful to the discussion as it gave legal case examples that assisted in understanding the remedy that will be available incase the bullying ta work places cause emotional distress such a nervous shock. Other cases that were beneficial to the research included Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 that demonstrated the point of convergence between work place bullying and the tort of negligence. It chiefly explicated that their employers in the work place have a duty of care to their employees. Another recent case that was applied in this research is Nationwide News v Naidu (2007) NSWCA 377 The Fair Work Act (2009) was also applied in this research as it gives out standards that should be applied in workplace to ensure that all employees are treated fairly and reasonably. In addition the Occupational Health and Safety (Commonwealth Employment) Act1991 (Cth) s16 , the Workplace Safety Act 1995 (Qld) s 28 and the Workplace Health and Safety Act 1995(Tas), s 9 provide for the safety of the workers in any workplace in Australia. Sufficiency of Resources There has been a wealth of resources at my disposal that have played a significant role in compiling this research. The collective web of case law and legislations has aided my understanding of work place bullying. However the judicial ink that has been so far spilt in regard to this study is still not sufficient. The judiciary should readily accept such cases to build a authoritative jurisprudence that will guide legal practitioners and researchers on the study. Accordingly employers should create a free working environment that will enable workers open up and tell the world about these challenges. If the aforementioned assertion is applied then the access of material to study the deleterious habit at work place will be open all and sundry interested in such a research. References Aaron, Rathmell. and Michaela, Whitbourn, Wilkinson v Downton at Work: Employers Liability for Intentionally Inflicted Psychiatric Injury Australian Journal of Labour Law (2008): 347. Print Beyond Bullying Association Inc. (n.d.). Beyond bullying. Retrieved October 10, 2016, from: https://cwpp.slq.qld.gov.au/bba/facts.html Creighton, Breen and Rozen, Peter. Occupational Health and Safety Law in Victoria.(The Federation Press, 1997. Print p 68 Community Public Sector Union. (2002).How to reduce workplace bullying. Retrieved October 10, 2016 from: https://www.cpsu.org/ohs/bullying.htm Darcy, McCormack, D., and Casimir, Gian . Workplace bullying and intention to leave: the moderating effect of perceived organizational support. Human Resource Management Journal, 18(4) (2008): 405422.Print Mannix, McNamara, P. Address Workplace bullying: Critical reflections and the problematic of culture -a discussion. (2004) Paper presented at the Adelaide International Workplace Conflict Conference, Adelaide, Australia .April 21-23 2004.Address McCarthy et al Bullying: From the Backyard to the Boardroom. The Federation Press, 2001.Print p 1, 15 Stale, Einarsen et al Bullying and Harassment at Work and Their Relationships to the Work Environment Quality: An Exploratory Study European Journal of Work and Organizational Psychology (1994) 381. Print Stewart, Andrew. Stewarts Guide to the Law of Employment. The Federation Press, 2009. Print 246 Cases Nationwide News v Naidu (2007) NSWCA 377 Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383 Wilkinson v Downton [1897] EWHC 1 (QB) Legislation Fair Work Act (2009) Occupational Health and Safety (Commonwealth Employment) Act1991 (Cth) Workplace Safety Act 1995 (Qld) Workplace Health and Safety Act 1995(Tas)