Workplace Bullying and the New South Wales Workers Compensation Commission: A Foucauldian qualitative content analysis of the medico-legal response to a complex social problem

Workplace bullying is increasingly recognised as a social problem resulting in adverse socioeconomic consequences for workers, employers, and the wider community. Despite its prevalence, workplace bullying remains an ambiguous and abstruse concept, with its consequences managed by a variety of legal authorities in Australia. Focusing on the workers compensation (WC) system and its review mechanism in NSW, the Workers Compensation Commission (WCC), this thesis examines how WCC arbitrators define workplace bullying and manage workplace bullying-related injury (WBRI) claims within the parameters of their statutory authority. A Foucauldian qualitative content analysis of a complete sample of 131 bullying-related cases heard by the WCC between 2002 and 2015 is undertaken to explore the discursive parameters of arbitrators’ exercise of their statutory authority, using the conceptualisations of governmentality, power, and knowledge to examine the interaction of medical and legal discourse in published WCC case reports. Findings illustrate the official WorkCover NSW definition of workplace bullying is inconsistently applied in WCC cases, leading to an ambiguity which highlights the potential dilution of the proscriptive value of ‘workplace bullying’ as a legal term prohibiting specific negative workplace behaviour. While arbitrators are preoccupied with asserting the dominance of legal authority over medical expertise, beyond their statutory requirements, the concept of workplace bullying cannot be extracted from its medicalised location within WC discourse. This medico-legal interaction results in the portrayal of injured workers as inherently powerless and vulnerable, and excludes employer participation in the dispute process. Highlighting the interaction between knowledge, power, and the resulting governmental authority of the WCC, arbitrators overstep the parameters of their statutory role, and in doing so articulate a contradictory medico-legal discourse which problematizes the IW, disrupts the ‘no fault’ ideology underpinning WC, and devalues the import of qualified psychiatric expertise. This discursive framework has important sociological, theoretical, and practical implications for IWs and employers navigating WC systems in Australia and internationally.