The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred.  
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The stakes are risingIn the world of anti-discrimination law awards of money against employers for psychiatric injury or illness caused by sexual harassment by one of their employees have been rare and low, typically in the range of $12,000 to $20,000. Similarly, the anti-bullying jurisdiction of the Fair Work Commission has seen limited orders made to prevent further bullying where claims have been made, and compensation is not available as a remedy for bullying behavior.

But things are changing, especially in the area of sexual harassment where awards of damages for psychiatric illness are increasing. This reflects change in societal attitude towards this type of conduct that has (finally) started to be reflected in judicial pronouncements.

The spectrum of mental harm that can be experienced by victims of sexual harassment or bullying covers depression, anxiety and post-traumatic stress disorder (PTSD) any of which can be debilitating for a significant period.

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Bullying behaviour comes in all shapes and sizes.  Identifying and deciding how to respond to diverse bullying behaviour by a worker (or workers) can create challenges for employers.

Recent headlines have cautioned that unfriending on Facebook could be considered bullying. That this seemingly innocuous action has been elevated to “bullying” has been the subject of many concerned water-cooler discussions since hitting the mainstream press.
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Many thousands of car fanatics are mourning the loss of Jeremy Clarkson from BBC’s internationally successful Top Gear program. But the case is a good illustration of a common tension in many business – that of a high performing and ‘successful’ employee who engages in controversial (and sometimes unlawful) behaviour.

Clarkson is renowned for behaviour which might be called ‘edgy’ by some, and ‘offensive’ by others. Often high-performing employees are excused for ‘quirks of character’ that, in other employees, might lead to a swift exit from the business. These quirks are often seen as part and parcel of the person’s high performance nature – ‘oh, that’s just the way he is’ or ‘that’s what you get with her’. Managers can be reluctant to take action for fear of losing a person responsible for bringing in significant customers or high volumes of sales.
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Since 1 January 2014 employees who have been bullied at work have been able to apply to the Fair Work Commission for a range of remedies. Monetary compensation is not available as a remedy. It has been held that conduct occurring before 1 January 2014, when the laws commenced operation, can be considered in dealing with claims.
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“Don’t stand, don’t stand so

Don’t stand so close to me

Don’t stand, don’t stand so

Don’t stand so close to me”

The chorus of the 1980 hit Police song might be the most succinct way of summarising the first set of substantive orders made by the Fair Work Commission (FWC) under the bullying jurisdiction in operation since 1 January 2014. 
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