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In the Shadow of the Law: the Silence of Workplace Abuse

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In the Shadow of the Law: the Silence of Workplace Abuse IN THE SHADOW OF THE LAW: THE SILENCE OF WORKPLACE ABUSE PhD Candidate: Ms Allison Jean Ballard Supervisors: Professor Patricia Easteal, AM Assistant Professor Bruce Baer Arnold Month and Year of Submission: January 2019 Thesis submitted for the Degree of Doctor of Philosophy in Law (941AA) The University of Canberra, Bruce, Australian Capital Territory, Australia Acknowledgements Somewhat uncommonly perhaps, I have been fortunate to have had the same two supervisors throughout my PhD journey. It has been a privilege and a huge pleasure to be guided by, and to learn from my primary supervisor (now Emeritus) Professor Patricia Easteal AM and my secondary supervisor, Assistant Professor Bruce Baer Arnold. Patricia in particular has been my rock. Without Patricia’s amazing kindness, guidance, encouragement, and friendship, I would have ‘thrown in the towel’ and left the PhD boxing ring long ago. Without her support, my well-developed ability to procrastinate (God, help me to finish everything I sta….)1 and to be distracted (God, help me to keep my mind on th– … Look a bird – ing at a time)2 would have reigned supreme. So, my immeasurable thanks to the extraordinary Patricia. Bruce, ever pragmatic and focused on the end game, reminded me to stay focused, helping me to tow the academic line, not take off on too many ‘flights of fancy’, and to check my footnotes! It has been a rollercoaster journey that has spanned three different careers across six different sectors. During this time, I have also started a pro bono virtual legal practice, and established, with my dear friend, and fellow academic, traveller, and shoe-shopper, Doris Bozin, one of the first university-based health-justice legal advice clinics. The latter would have been impossible without the generous support of Dr Jenny Weekes, Vicki de Prazer, and Sam Smith from the University of Canberra Medical and Counselling Service. What amazing women! My PhD journey has taken me to and through at least seven different countries (Italy, Canada, New Zealand, Germany, Spain, Switzerland, and France). As Patricia can attest, I have taken to PhD conference-tourism/education-vacation (both inside and outside Australia) with enormous gusto. I’ve attended brilliant events, met wonderful and inspiring people who are also passionate about eliminating the harms associated with workplace bullying, and presented papers in Canberra (at two Justice Connections Symposiums), in Sydney, Melbourne, at the Gold Coast, and in Milan, Toronto, Kingston (Ontario), Bordeaux, and Torino. How lucky am I? 1 Myers-Briggs INFP Prayer: Otto Kroeger and Janet .M Thuesen, Type Talk: The 16 Personality Types That Determine How We Live, Love, and Work (Dell, 1988). 2 Ibid: Myers-Briggs ENFP Prayer. iii Lucky also to have had the support and encouragement of my two beautiful sons, Ryan and Owen Andrakovic – such amazing and kind young men – my lovely sisters Rosie Wisbey and Virginia Pederick, my brothers (especially the very creative Geoff) and my delightful, smart, and talented god-daughters Captain Erin Claire Pederick, the unforgettable Cassie Alison Ballard, and Pippa Kate Ballard. Thanks also to my other wonderful nieces (Sara, Clair, Carly, Stacey and Alyce) and my awesome nephews, ‘outlaws’, and cousins. A huge thank you also to my wonderful friends. Special mention to my Canberra ‘besties’ Victoria Coghlan (Vic), Veronica O’Brien, Jo Townsend and Geoff Palmer (who sustained me with many wonderful meals both in Canberra and Narooma), Diana Kanard, and to my ‘Tassie’ friends Hanja and Angela Enright, Katie Fiddian-Teare, Karen Mitchell, Scott Mitchell, Kevin Bannatyne, and Ida Snajder whose insights inspired me. Thanks also to my work buddies - the lovely Juno Sheikh Tajudeen, Elishka Skelding, Justin Karcher, Catherine Karcher, Tom Thompson, Richard Calver, and Emma Kenneally. Special thanks too to Dr Libby Anderson, Dr Ahmad Farshid (and Shephalie), Melita Bozin, Vince Zilinskas, Simon Easteal, and Carolyn Petrelli, all of whom helped enormously in ways perhaps not even contemplated by them. And a big thank you to one of my oldest friends, Nick Richardson, who inspired me to return (yet) again to the study of law – cheers and beers Nick! I am also very grateful to the charming John Wilson who gave me my first lawyer job at Williams Love & Nicol, and who sponsored Elishka and my volunteer legal case work at the Women’s Legal Centre (ACT & Region) Inc. Thanks to Jen Wyborn and her great ideas! John, together with Gabrielle Sullivan in particular, have been wonderful guides and mentors. But for the opportunity of working with them, one of the seeds for this particular PhD would never have been sown. My work at WLC offered me many things, including a wonderful opportunity to learn my craft through once-a-week escapes from the rigours of six-minute billing. Best of all though was the amazing good fortune and privilege to meet the many wonderful, deep- thinking, compassionate, and insightful women from the WLC who became my trusted colleagues, friends and fellow journeywomen on the quest for social justice: Allison Munro, Marilyn Wright, Carol Benda, Iris Elgueta, Rhonda Payget, Margie Rowe, Heidi Yates, Jane Campbell, Telitha Elemes, and Ms Harris. My work at WLN, Bradley Allen Love Lawyers and iv WLC also provided the opportunities, directly and indirectly, to meet and work with a number of the kind souls who participated in my research. An enormous thank you to all of them. Thanks also to the current and former University of Canberra staff who provided help, support, and encouragement, particularly David Carter, Sue Uzabeaga, Craig Applegate, Lorana Bartels, Maree Sainsbury, Murray Raff, Susan Priest, Joelle Vandermensbrugghe, Melanie Haines, Jane Diedricks, and Tony Kidney, who have all had a place in my PhD journey one way or another. And of course, thank you to the Australian Government for my research scholarship. Finally, the biggest thankyou to my parents, Max and Elva. My thirst for ongoing education and new experiences became a fundamental part of my way of being when the family moved from the Australian ‘bush’ to the ‘big smoke’ of Canberra. Sadly, we lost Mum in 2014, well before her time and quite early in my PhD. Dad died in early 2006 before I returned (yet again – God help me to take things more seriously, especially parties and dancing!)3 to study law. As a ‘bush lawyer’ Dad would have been proud! Mum, our self-named ‘chief cook and bottle washer’, raised seven wild and wilful children almost singlehandedly due to Dad’s being away for work. She worked hard at home (including as a talented seamstress) and, once the kids were grown, in paid work outside home. A good neighbour and friend, excellent lawn bowler and card shark, Mum enjoyed enormously her second career in retail. Like Mum, Dad was also a hard-worker, transforming himself from drover to share-farmer to waiter to national award- winning salesman. He was often the quiet, unsung hero behind the scenes. After Mum’s death I learned from my cousin Guy, who was still grateful many years later, how Dad had confronted my Aunt’s violent second husband, warning him to never lay another hand on her. Max and Elva had a great circle of friends and held court at home on Saturday mornings, drinking wine and troubleshooting the world’s problems with all their mates. They were kind, generous, compassionate ‘salt of the earth’ soulmates who each played a mean game of bowls and made significant contributions to the community and particularly to the Canberra Forrest Bowling Club. They gave ‘all of us kids’ so much. Thanks Mum and Dad, for everything. We miss you! And finally, the biggest thanks of all to Pesha. 3 Ibid: Myers-Briggs ESFP Prayer. v Abstract This thesis investigates the intersections between workplace violence (defined here to include ‘bullying and harassment’), ‘voice’ and ‘silence’. A key focus is the ways in which organisations and certain aspects of Australia’s legal system (together with associated practices, processes, and procedures) may operate to silence the targets of workplace ‘bullying’ (however defined) and their complaints. I explore the gap between the alleged incidence of workplace bullying and finally determined court and tribunal cases by examining the incidence of workplace abuse, its nature, causes and consequences and the legal pathways available to remedy this phenomenon in Australian workplaces. I examine how language and meaning may influence the reporting (or under-reporting) of workplace bullying, and how ‘reporting’ alone may not be enough to win the bully ‘war’. The ways in which dispute resolution and workplace investigations may be used as ‘weapons’ to bully targets, particularly where legal and other practitioners may be conflicted or have a vested interest in process or outcomes, is also explored. How (alternative) dispute resolution processes such as conciliation and mediation may foster employee silence through the ‘confidential’ settlement of bullying disputes and the inequitable conduct of these processes is also explored. In addition, I analyze the first 15 months of Australia’s novel legal remedy for workplace abuse, the national anti-bullying regime. While some, particularly legal practitioners, may view this ‘new’ jurisdiction as ineffective, it is arguable that the regime achieves exactly what it set out to do: to keep bullied workers safely at work while stopping the bullying. I conclude by suggesting some strategies and new approaches to address workplace bullying and harassment including
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