tom martin - norton rose fulbright - bullying and beyond: managing risk with mental health programs
DESCRIPTION
Tom Martin delivered the presentation at the 2014 Perth Safety in Action Conference. The 2014 Perth Safety in Action Conference focused on enhancing compliance, productivity and affordability for big and small business. Highlights included an international keynote address from Neville Rockhouse, the Safety and Training Manager for Pike River Coal in New Zealand. For more information about the event, please visit: http://www.safetyinaction.com.au/SIAPerth14TRANSCRIPT
‘Tip of the iceberg’
Bullying and mental health in the workplace
Tom Martin, Special Counsel
Norton Rose Fulbright Australia
11 June 2014
Do you agree?
Bullying is the key workplace health and safety issue of our time.
Federal Parliament’s 2012 report into bullying
The numbers tell a story
• There are extensive statistics on bullying:
– Number of people bullied each year in Australia between 400,000 and 2 million
– 1 in 4 employed workers say they have been bullied
– 2.5 - 5 million Australians will experience workplace bullying at some point during their
career
– Productivity Commission’s estimate of cost of bullying to Australian businesses is
between $6 - $36 billion per year.
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Bullying’s the ‘tip of the iceberg’ of psychological health
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The multiple legal consequences of bullying
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Bullying
Workers Compensation
Discrimination
Unfair Dismissal
Work Health and Safety
FWC anti-bullying
Criminal law
The Bullying Spectrum
“Initiation
rites”
Physical
assault
SUBTLE OBVIOUS
Ostracising
Favouritism
Unwarranted/
Excessive
criticism
Unfair
allocation
of tasks
Name
calling
Denial of
benefits
196029456
Snapshot of the new federal anti-bullying laws
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A worker who reasonably
believes they have been bullied, can apply for an order
to make the bullying stop.
Bullying happens when:
An individual or group repeatedly behaves
unreasonably towards a worker or group; &
The behaviour creates a risk to health and
safety;
But does NOT include reasonable
management action, taken in a reasonable
manner.
The Commission can make an order to stop bullying if:
It is satisfied the worker has been bullied at
work; and there is a risk it will continue.
The Commission must take into
account:
The outcomes of any investigation into the
matter
The availability of any dispute procedure
available
Any other matter
Mandatory Risk Management
Regulatory requirement to:
Identify workplace hazards
including bullying
Identify causes of bullying
Assess risks and implement controls to:
• Eliminate bullying; or
• Reduce bullying to the extent reasonably practicable
Monitor and review for ongoing appropriateness
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Identify bullying risk factors – Generic Workplace Risks
•Significant technological change
•Restructuring or redundancy
•Change in work methods
•Outsourcing
Organizational change
•Autocratic leadership (strict and directive)
•Unstructured leadership styles (inadequate or inconsistent supervision, poor delegation or guidance)
Negative leadership styles
•Lack of resources, training and role definition
•Unreasonable timeframes and hours
Lack of appropriate work systems
•Criticism and other negative interactions
• Interpersonal conflict
Poor workplace relationships
•Young, new, mature, apprentices, injured workers, piece workers and minorities Vulnerable workers
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Identify bullying risk factors – specific issues
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Hazard reports
Issues raised by WHS representatives
Workplace data - sick leave, transfer requests, resignations.
Results from workplace culture surveys and exit questionnaires
Sources of workers’ compensation claims
Patterns of worker complaints and grievances (formal and informal)
Assessing Bullying Risk Factors
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Bullying Risk Assessment
Organisational Change
• change in supervisor/manager
• significant technological change
• restructuring
• downsizing
• change in work method/s
• outsourcing
• plan all change
• consult with workers affected as early
possible
• develop and maintain effective
communication throughout the change
• seek and act on feedback throughout
the change
• review and evaluate change
processes
Negative leadership styles
Autocratic
Characterised by styles that are strict and
directive, workers not being involved in
decision making, not allowing flexibility
Laissez-faire
Characterised by inadequate or absent
supervision, responsibilities inappropriately
and informally delegated to subordinates,
little or no guidance provided to
subordinates
• management accountability for positive
leadership style
• management supervision, support and
training
• leadership coaching, including providing
constructive feedback, communication
skills, democratic/participative leadership
• mentor and support new and poor
performing managers
• regular feedback provided on
management performance (including
feedback from workers under
supervision), feedback acted on
• implement and review performance
improvement/development plans
• provide regular leadership skills update
training (e.g. yearly)
• include leadership questions (e.g.
conduct and performance) in exit
interviews and worker opinion surveys
Work environment risk
identification
Risk assessment Risk control measures
Long-term stability,
predictability,
continuity, certainty
High levels of unplanned
and reactive change;
change that creates
confusion, ambiguity,
uncertainty
Democratic
Collaborative,
consultative, treats staff
fairly, interpersonal
interactions supportive
and positive, accessible
and communicates
effectively
Autocratic
Task emphasis, lack of
involvement of workers
with decision making,
strict, directive, lacks
trust, poor delegation,
tight control, poor
interpersonal skills
Democratic
Collaborative,
consultative, treats staff
fairly, interpersonal
interactions supportive
and positive, accessible
and communicates
effectively
Laissez-faire
Lack of direction, lack of
supervision, absence of
role clarity, lack of
responsibility, lack of
support/systems/
procedures
Lower risk Higher risk
Lack of appropriate work systems
• lack of resources
• lack of experience
• lack of role definition
• uncertainty about job roles and way
work should be done
• poorly designed rostering
• unreasonable performance measures
or timeframes
• lack of support systems
• develop and implement standard
operating procedures
• review and monitor work loads and
staffing level
• review resource availability
• redesign and clearly define jobs
• reduce excessive working hours
• seek regular feedback from staff over
concerns about roles and
responsibilities
Poor workplace relationships
• critical and negative interactions
• negative relationships between
supervisors and subordinates
• interpersonal conflict
• workers excluded
• develop and implement a conflict
management process
• provide training (e.g. diversity and
tolerance, addressing conflict in the
workplace, interpersonal communication
and interaction)
• ensure supervisors act on inappropriate
behaviour
Workplace characteristics
Vulnerable workers/staff , including:
• young workers
• new workers
• apprentices
• injured workers and workers on return to
work plans
• workers who are in a minority due to
cultural and religious difference
• piece workers
• workers in a minority because of ethnicity,
disability, political views, gender or sexual
preference
• develop and implement systems to
support and protect vulnerable staff
• train workers (e.g. valuing workplace
diversity and tolerance)
• train line mangers to deal with workers at
higher risk
• implement a contact officer system to
provide support and advice
• implement a ‘buddy’ system for new
workers
• monitor workplace relationships
Assessing Bullying Risk Factors (con’t)
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Bullying Risk Assessment (Continued)Work environment risk
identification
Risk assessment
Lower risk Higher risk
Risk control measures
Clearly defined roles
and responsibilities,
clear work
requirements,
clear lines of authority,
well organised,
realistic workloads
and job demands
High levels of uncertainty
around roles and
responsibility, lack of clarity
around expectations, poor
communication channels,
excessive/unrealistic work
demands
Poorly trained staff
Open communication,
clarity regarding
standards of behaviour
required, inclusion
management, resolution
process for managing
interpersonal conflicts
Unmanaged and
unresolved conflicts and
disputes, high levels of
interpersonal conflict and
disputation tolerated
Inappropriate behaviour
towards vulnerable staff
tolerated/ignored
Lack of appropriate
communication processes
to report discrimination,
abuse and improper
conduct
Lack of trust /confidence
in management's
willingness to resolve
problems
Systems to support and
monitor the integration of
workers
Accepting of differences
and diversity
Appropriate supervision
Usual Controls to Eliminate or Minimise Bullying
Implement policies that state bullying is
not tolerated.
Enforce policies against all levels of
staff.
Implement formal and informal
complaint-handling procedures that are
easily accessed.
Train all staff in the policy and procedures
Make pro-active interventions ‘at risk’ areas, e.g. training
and supervision
Conduct credible investigation into
complaints.
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Why the usual bullying controls may not be sufficient
You won’t ever eliminate unintentional, unreasonable behaviour -but you can improve workers’ resilience to it.
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Bully
Trained and
compliant
Oblivious to effect on
others
Victim
Vulnerable
Appears unaffected
Protecting and improving workplace mental health
Early intervention
• Mental Health First Aid
Culture
• Tristan Jepson Foundation - Best Practice Guidelines
Training
• Exercise, diet and fatigue
• Resilience
• CBT – Cognitive Behavioural Therapy
• Mindfulness meditation
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Mindfulness
“The faculty of voluntarily bringing back a wandering attention, over and over again, is the very root of judgment, character and will . . .
An education which should improve this faculty would be the education par excellence. But it is easier to define this ideal than to give practical directions for bringing it about.”
William James, 1890, The Principles of Psychology
Today, this faculty can be measured and improved at a clinical level.
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Growth in mindfulness research
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Mindfulness meditation – health and safety
Health benefits of Mindfulness Based Stress Reduction
• Reduces chronic pain, headaches, blood pressure, cholesterol
• Reduces stress, anxiety, depression and use of intoxicants
• Improves immune function
Performance benefits
• Improves working memory
• Reduces mind wandering
The University of California is currently undertaking a study into the effect on nurses’ safety performance after an 8 week course in MBSR that has been adjusted to focus on safe behaviours.
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Global organisations using mindfulness
DisclaimerNorton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski L.L.P., each of which is a separate legal entity, are members (“the Norton Rose Fulbright members”) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
References to “Norton Rose Fulbright”, “the law firm”, and “legal practice” are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together “Norton Rose Fulbright entity/entities”). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this presentation. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity.
The purpose of this presentation is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed.
You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright.
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