If we have robust anti-bullying and harassment procedures in place, do we still need to have a policy?
There is no explicit legislative requirement under work health and safety legislation for a workplace to have a policy (in addition to, or in place of, a procedure) in respect of workplace bullying and harassment – although publicly listed companies may have corporate requirements for such a policy.
The general duty of care under the Work Health and Safety Act 2011 (NSW) requires persons conducting a business or undertaking (PCBUs) to ensure, so far as reasonably practicable, the health and safety of workers and others in the workplace. This duty includes an obligation to implement control measures to eliminate, so far as reasonably practicable, the risks posed by workplace bullying and harassment. Having effective policies and procedures, and relevant training and information for workers, is one necessary step that a PCBU can take to minimise the risks to health and safety posed by bullying and harassment.
SafeWork NSW provides guidance material relating to bullying prevention, including useful guidance on the development and content of bullying prevention policies and procedures. The guidance material suggests that workplaces should have in place a bullying prevention policy and a complaint-handling procedure. The reason for this guidance is that a policy sets the framework or goal for the organisation and details who the policy will apply to, and what the consequence will be if the policy is breached. A procedure is (usually) different and outlines the steps that will be taken to achieve that goal or implement the framework.
A policy should set out, among other matters specific to your workplace, what behaviours are and are not acceptable, and outline how the PCBU will prevent bullying and how workers should respond to bullying. The policy may refer to more detailed procedures on the response to bullying (such as a complaint-handling procedure). Whether you have a ‘policy’ or ‘procedure’, it should address those matters, at a minimum.
Policies and procedures in respect of harassment and discrimination may also assist an employer to minimise the risk of vicarious liability under discrimination laws for acts of harassment and discrimination of their employees in the workplace.
Employers must show that they have taken reasonable steps to prevent harassment and discrimination to be able to defend a claim that an employer is vicariously liable for the acts of its employees.