- One year after the release of the International Bar Association report, Us Too? Bullying and Harassment in the Legal Profession, it is timely to reflect on the steps taken to implement the report’s recommendations.
- Bullying can have implications not only for victims, but also for perpetrators and the employer. Complaints can be made under the Australian Solicitors’ Conduct Rules, or claims made for ‘stop bullying orders’ under the Fair Work Act, or proceedings commenced for breach of duty or breach of contract.
On 26 June 2019, an LSJ Speaker Series panel discussion examined the findings of a report released by the International Bar Association in May 2019 entitled Us Too? Bullying and Harassment in the Legal Profession (the ‘IBA report’) as well as the substantial damage suffered by the legal profession, individuals and organisations when a culture of bullying is left unaddressed. In ‘The hidden workplace hazard’ 57 Law Society of NSW Journal, July 2019, 30, Allman considered the IBA report and interviews with practitioners who described their experiences of workplace bullying. The article commenced with the words, ‘I can’t really think of a time during my four years in [a top-tier law firm] where I or someone I knew was not being bullied,’ (emphasis original) and continued with descriptions of solicitors being retrieved from the bathroom upon exceeding a six-minute unit, work being allocated at midnight for completion before 7am the following morning and conduct amounting to physical assaults in the workplace.
A year after the release of the IBA report, it is timely to consider the steps taken to implement the recommendations made in the IBA report as well as the potential implications for those who continue to engage in workplace bullying. While the IBA report dealt with the prevalence of both bullying and sexual harassment, the scope of this article is limited to an examination of workplace bullying only.
The IBA report
Described as the largest ever global survey of legal professionals, the IBA report examined data obtained following a survey of almost 7,000 individuals from legal workplaces across 135 countries, including barristers, solicitors, in-house counsel, the judiciary and legal professionals employed within government. The opening words to the executive summary of the IBA report were ‘[t]he legal profession has a problem,’ an observation supported by the alarming data within the report. In respect of workplace bullying, the IBA report disclosed that 50 per cent of women respondents and one in three men had been bullied in the workplace (p8). These figures were significantly higher when only Australian data was considered, which disclosed that 73 per cent of women responding and 50 per cent of men had been bullied (p87). The IBA report concluded that ‘bullying and sexual harassment are rife in Australian legal workplaces’ (p87). Significantly, the IBA report emphasised that, while women in the legal profession are disproportionately affected by both bullying and sexual harassment, the data disclosed that ‘these are not “women’s issues”’, given bullying and harassment impacts all genders both directly and indirectly (p17-8).
The IBA report data echoes the findings disclosed by surveys of the Australian legal profession. In 2014, the Law Council of Australia National Attrition and Re-engagement Study Report (the ‘NARS report’), which surveyed approximately 4,000 legal professionals across Australia, disclosed that 50 per cent of women respondents, and over 33 per cent of men, reported having been bullied in their current workplace.
In its report, the IBA made 10 recommendations, which importantly included implementing policies and standards, and exploring flexible reporting models (p10). According to the IBA report, effective reporting systems that empower targets of bullying and sexual harassment to report their experiences are ‘among the most critical elements’ of a strategy to address such conduct (p106). The observation made generally in the IBA report was that ‘[t]he profession should therefore urgently consider revising existing reporting models … [including] in external organisations that receive reports (a function often held by professional regulators or law societies and bar associations)’ (p106).
Office of the Legal Services Commissioner responds
Commensurate with the IBA recommendations, in June 2019 the NSW Office of the Legal Services Commissioner (the ‘OLSC’) called for ‘disclosures of’ sexual harassment and bullying and launched its guide to reporting bullying, sexual harassment or discrimination under rule 42 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the ‘Solicitors’ Rules’) (OLSC Information Sheet: Inappropriate Personal Conduct in a Law Practice). The guide is said to apply to those subject to the conduct or those who have witnessed or have knowledge of it and states that law practices ‘have an obligation to prevent a culture of harassment and bullying.’ The OLSC thereafter reported ‘receiving significantly more calls’ in relation to bullying and sexual harassment (OLSC Annual Report 2018-2019, p4), with six specifically trained staff of the OLSC positioned to receive such enquiries. From May 2019 to February 2020, the number of such enquiries increased from about two to three per annum to about four to six per month, albeit with a negligible increase to the number of formal complaints made, given the ongoing reticence to make such complaints (data published with the authority of the Legal Services Commissioner). From about March 2020, according to the OLSC, telephone enquiries all but dried up during the pandemic lock down, although an online reporting platform enabling confidential disclosures to the OLSC is foreshadowed.
The implications of engaging in workplace bullying
For those who continue to engage in workplace bullying in the legal profession in NSW, the repercussions are clear. Rule 42.1.3 of the Solicitors’ Rules provides that a solicitor must not, in the course of practice, engage in conduct which constitutes workplace bullying. Workplace bullying is defined under the Solicitors’ Rules as including ‘the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimidate, offend, degrade or humiliate.’ Significantly, a breach of rule 42 can constitute professional misconduct or unsatisfactory professional conduct (Legal Profession Uniform Law s 298(1)(a)).
Along with the availability of complaints to the Legal Services Commissioner in respect of alleged breaches of rule 42.1.3, applications can be made for ‘stop bullying orders’ under Part 6-4B of the Fair Work Act 2009 (Cth) (the ‘FW Act’) in relation to workplace bullying, which is defined as having occurred if a worker is subjected to conduct that is repeated, unreasonable and such as to create a risk to health and safety while at work in a ‘constitutionally-covered business’ (which includes incorporated entities), and provided the impugned conduct does not constitute ‘reasonable management action’ (s 789FD).
Under Part 6-4B of the FW Act, for conduct to be repeated, it cannot be a single incident but is usually taken to imply the ‘existence of persistent unreasonable behaviour’, while ‘unreasonable behaviour’ includes ‘victimising, humiliating, intimidating or threatening conduct’ (Explanatory Memorandum to the Fair Work Amendment Bill 2013 at -).
Significantly, in contrast to the jurisdiction under Part 6-4B of the FW Act, there is no defence of ‘reasonable management action’ to a claim of a breach of rule 42.1.3 of the Solicitors’ Rules, nor is there any requirement that the alleged conduct on its face constitute a risk to health and safety. This has the result that rule 42.1.3 may constitute a ‘lower bar’ than s 789FD of the FW Act.
In addition to the relief available under Part 6-4B of the FW Act, and the prohibition under rule 42.1.3, employers moreover have a positive obligation to ensure the health, safety and welfare at work of their employees under workplace safety legislation (which can include ensuring employees are protected from bullying behaviour), as well as obligations under implied or incorporated contractual terms, and/or a duty of care, to prevent the risk of harassment and bullying (See e.g. Nationwide News v Naidu (2007) 71 NSWLR 471; Swan v Monash Law Book Co-operative (2013) 235 IR 63, at –; Wearne v State of Victoria (2017) 268 IR 401 at –).
The content of an employer’s duty in this regard involves providing a safe workplace and a safe system of work (Kondis v State Transport Authority (1984) 154 CLR 672, 687–8; Govic v Boral Australian Gypsum P/L (2015) 47 VR 430, 436), including by providing ‘competent employees’ who the law requires not to ‘bully, harass, demean, abuse, intimidate or humiliate their co-workers’ (Hingst v Construction Engineering (Aust) P/L (No 3)  VSC 136 (at )) citing New South Wales v Mannall  NSWCA 367; Brown v Maurice Blackburn Cashman (2013) 45 VR 22; Swan v Monash Law Book Co-operative  VSC 326; Johnson v Box Hill Institute of TAFE  VSC 626; Roussety v Castricum Brothers P/L  VSC 466; Wearne v State of Victoria (2017) 268 IR 401).
While there are few decided cases under rule 42.1.3 or similar professional conduct rules, to the extent that cases decided in other jurisdictions have dealt with some of the elements of ‘workplace bullying’ within rule 42 (such as repeated, unreasonable conduct), those authorities can inform the definition of workplace bullying associated with rule 42.1.3 of the Solicitors’ Rules.
Workplace bullying has been held to be constituted by a wide range of conduct, including aggressive, belittling, undermining and intimidating conduct (Swan v Monash Law Book Co-op (2013) 235 IR 63 at , ; Naidu v Group 4 Securitas P/L (2005) NSWSC 618), as well as ‘coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination’ (Mac v Bank of Queensland Ltd  FWC 774 at ).
While it may be that aggressive and bullying behaviour has historically been considered an innate aspect of the practice of law, as observed in ‘The hidden workplace hazard’, it is also clear that engaging in such conduct can have implications for perpetrators and the employing entity if complaints are made under rule 42.1.3, claims are made for ‘stop bullying orders’ under Part 6-4B of the FW Act, or proceedings commenced for breach of duty or breach of contract.