workplace bullying and harassment procedure · workplace bullying and harassment ... in relation to...

Workplace Bullying and Harassment Procedure

Wingecarribee Shire Council – Workplace Bullying and Harassment Prevention Procedure Version: 2.0 Adoption Date: 25 July 2014 Policy Owner: Manager Organisational Development

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Workplace Bullying and Harassment Prevention Procedure DIVISION: Corporate, Strategy and Development Services SECTION: Organisational Development FILE NOS: 841/6; 710

APPROVAL DATE: 25 July 2014 – Ann Prendergast, Acting General Manager

BACKGROUND This procedure outlines Council’s commitment to a safe workplace and is aimed at ensuring, so far as it reasonably can, that employees are not subjected to any form of bullying while at work or at work functions. It also details the legal responsibilities of Council and employees in relation to preventing bullying and harassment in the workplace. Council recognises the emotional impact that workplace bullying and harassment can have on an individual and understands the need for tact and sensitivity in dealing with any problems when they arise. This procedure has been developed to make it easier for an employee, volunteer or contractor to lodge a legitimate complaint on the grounds of workplace bullying or harassment. This procedure must be read in conjunction with the Workplace Bullying and Harassment Prevention Policy.

PRINCIPLES The principles of procedural fairness shall apply at all stages of investigations into workplace bullying or harassment complaints. Persons responsible for investigating and resolving complaints have a duty not to be affected by bias or conflict of interest, and must act fairly and impartially. Each party shall be given a fair opportunity to know the case against him or her and to have their circumstances heard. All individuals involved with the bullying or harassment complaint will be treated with respect and courtesy. Enquiries and complaints will be dealt with in a sensitive, equitable, fair and confidential manner. Matters will be dealt with expeditiously while ensuring that all parties are provided with sufficient time to prepare and/or respond to allegations of bullying or harassment. Breaches of this policy may lead to action taken against a staff member in accordance with the disciplinary procedures as set out in the Local Government (State) Award and Council’s Disciplinary policy and procedure. Individuals who breach this Policy may also be personally liable under the Work Health and Safety Act 2011.



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RELATED COUNCIL POLICY OR PROCEDURE

Workplace Bullying and Harassment Prevention Policy

Workplace Health and Safety Management System

Wingecarribee Shire Council Code of Conduct

Wingecarribee Shire Council Statement of Ethics

EXAMPLES OF WORKPLACE BULLYING Definitions of bullying and harassment are included in the Workplace Bullying and Harassment Prevention policy. Workplace bullying or harassment can be carried out in a variety of ways including through email or text messaging, internet chat rooms, instant messaging or other social media channels. The following types of behaviour, where directed towards an individual and repeated or occurring as part of a pattern of behaviour, may amount to bullying:

Abusive, offensive or demeaning language

Teasing or regularly making a person the brunt of practical jokes/pranks, particularly after they have objected

Spreading derogatory innuendo or rumours about a person

Interfering with or damaging a person’s property

Displaying written or pictorial material which degrades or offends an individual

Repeatedly criticising or making comments intended to discredit or undermine a person or devalue their work

Verbal intimidation or threats, or a repeated pattern of aggressive outbursts

Making phone calls or sending letters or emails that are abusive, threatening or offensive

Threatening an employee with dismissal, disciplinary action or demotion without proper justification

Withholding information that is needed for an individual’s employment

Excluding or isolating a member of staff, volunteer or contractor

“ganging up” on a member of staff, volunteer or contractor. The following types of behaviour may amount to harassment:

telling insulting jokes about particular racial groups sending explicit or sexually suggestive emails displaying offensive or pornographic posters or screen savers making derogatory comments or taunts about someone’s race or religion asking intrusive questions about someone’s personal life, including their sex life.

These lists are not exhaustive. Other types of behaviour may also constitute bullying or harassment, and the Workplace Bullying and Harassment Prevention Policy definitions provide further examples.



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Condoning or failing to appropriately respond to any form of bullying and harassment is not acceptable. Council’s expectation is that all employees, no matter what position they hold, have an obligation to report instances of bullying and harassment.

WHAT IS NOT CONSIDERED TO BE WORKPLACE BULLYING OR HARASSMENT? Reasonable Management Action Council may take reasonable management action to direct and control the way work is carried out. It is reasonable for managers, coordinators and team leaders to allocate work and give feedback on a worker’s performance. These actions are not workplace bullying or harassment if they are carried out lawfully and in a reasonable manner. Examples of reasonable management action include but are not limited to:

Setting reasonable performance goals, standards and deadlines

Rostering and allocating working hours where the requirements are reasonable

Transferring a worker for operational reasons

Deciding not to select a worker for promotion where a reasonable process is followed

Informing a worker about unsatisfactory work performance in an honest, fair and constructive way

Implementing a Performance Improvement Plan to address performance improvement requirements to meet reasonable objectives, standards and deadlines.

Informing a worker about inappropriate behaviour in an objective and confidential way

Implementing organisational changes or restructuring

Taking disciplinary action, including suspension or terminating employment on valid grounds

Investigating allegations of misconduct in a fair and reasonable manner. Workplace Conflict Differences of opinion and disagreements are generally not considered to be workplace bullying or harassment. People can have differences and disagreements in the workplace without engaging in repeated, unreasonable behaviour that creates a risk to health and safety. However, in some cases conflict that is not managed may escalate to the point where it meets the definition of workplace bullying and harassment.

WHAT DO I DO IF I EXPERIENCE WORKPLACE BULLYING, OR HARASSMENT At first instance, a person may choose to resolve issues by self-managing the situation. This usually involves telling the other person the unreasonable behaviour is not welcome and asking for it to stop. If an individual does not feel safe or confident with approaching the other person they can seek the assistance of a supervisor or manager, human resources business partner, their health and safety representative, or their union representative.



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In situations where a supervisor or manager is informed or becomes aware of an alleged situation of bullying or harassment that is being self-managed, it is important that the manager or supervisor monitor the situation to ensure that it is resolved appropriately. They should not get involved unless the alleged victim requests them to do so, but they should maintain contact with the alleged victim to ensure the situation is properly resolved, and document all relevant contact with the alleged victim. In the event it is not properly resolved, the manager or supervisor must report the matter to their manager or HR business partner for further action and/or investigation. Workplace bullying and harassment may be identified and reported by those subject to the behaviour or by witnesses. A person can raise or report workplace bullying and harassment verbally or in writing by:

Informing a supervisor, manager or HR Business Partner

Informing their health and safety representative or union representative

Using established reporting procedures. A manager or supervisor may identify a risk of workplace bullying through changes in the workplace, for example increased absences, changes in worker’s performance or low staff morale. If the staff member wishes to make a formal complaint about bullying or harassment they must make this complaint in writing on the Bullying and/or Harassment Notification form attached to these procedures (see Appendix A). Formal complaints will be resolved in line with the procedure outlined in the Bullying and/or Harassment Complaint Flowchart (see below and Appendix B). If investigation is determined appropriate for a bullying or harassment complaint, this will be conducted in accordance with the principles of due process and procedural fairness. Specifically:

Accused persons are entitled to know the allegations made against them

Accused persons are to be given an opportunity to respond to those allegations prior to any final disciplinary action or sanction against them

Accused persons are entitled to an unbiased adjudication of their matter by senior management of the Council.

At all stages within the resolution of a bullying or harassment complaint all parties have the right to seek advice from their support person. If a complaint of workplace bullying or harassment is substantiated, the investigator or manager should consult with their HR business partner and Deputy General Manager before making recommendations for resolution. An outcome of a substantiated complaint may involve disciplinary measures against one or more employees as prescribed by the Local Government (State) Award. Where a complaint is found not to be substantiated, the investigator or manager will advise the complainant and the person against whom the complaint was made. If necessary they will also take relevant steps to prevent the complainant or the person against whom the



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complaint was made being subject to reprisals or adverse action of any kind, by any person as a result of the complaint having being made. If the investigator or manager finds that a complaint of workplace bullying or harassment is vexatious or made on invalid grounds they will advise the Deputy General Manager who may consider taking appropriate action which may involve disciplinary measures in accordance with the Local Government (State) Award. Council’s Employee Assistance Program (EAP) provides professional counselling and wellbeing support to all employees and their eligible, immediate family members. Council encourages any staff who are party to any workplace bullying or harassment to seek guidance from this program. The purpose of the EAP is to provide solution focused, short-term support and they can be contacted on 1300 366 789.

RESPONDING TO WORKPLACE BULLYING AND HARASSMENT Workplace bullying and harassment is best managed by responding as soon as possible after becoming aware there is a problem. Responses to workplace bullying and harassment will vary depending on the situation, the number of parties involved and the size and structure of the work unit. Effectively responding to issues when they are raised can stop the situation happening again and reinforce to employees that workplace bullying and harassment is treated seriously and consistently by the organisation. The steps involved in a formal complaint of bullying and harassment: (See also Appendix B – Bullying and/or Harassment Complaint Flowchart) As noted above, formal complaints should only be made where efforts have been made to self-manage the situation, or where workers do not feel safe or confident in approaching the other person. Formal complaints should be made to the employee’s direct manager. If the direct manager is the alleged bully or harasser, the complaint should be made to that person’s manager or to your HR Business partner. Managers may either conduct the investigation themselves if they have received formal investigation training, or work with their HR business partner to determine the appropriate approach to undertake an investigation. The steps are as follows:

1. The complainant makes an allegation in writing (assistance will be provided to employees if they are unable to make an allegation in writing themselves).

2. The complaint is acknowledged within two working days, or as soon as reasonably practical.

3. The complainant is interviewed to ascertain the full details of the complaint. 4. The allegations are conveyed to the alleged perpetrator in full. 5. The person(s) about whom the complaint is being made is given the opportunity to

respond and explain their actions.



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6. If there is a dispute over facts, statements from any witnesses and other relevant evidence is gathered.

7. A finding is made as to whether the complaint has substance. 8. A report documenting the investigation process, the evidence, the findings and a

recommended outcome/s is submitted to the Deputy General Manager responsible for that employee’s area.

9. The Deputy General Manager decides on the action to be taken, and implements the outcome/s.

10. The parties directly involved are advised of the outcome in writing. 11. If any party to the complaint is not satisfied with the outcome, they may lodge an

appeal with the General Manager in writing, stating their reasons for the appeal and the remedy they are seeking. Note: Any appeal will be considered on the facts, and may result in either a reduction or an increase in the severity of any penalty imposed, according to the General Manager’s assessment. This is to dissuade vexatious or frivolous appeals.

12. Following a review of any appeal, the General Manager will make their decision.

13. Workers may choose to further appeal to external bodies (such as WorkCover).

Coordinators and line managers must intervene when they observe unreasonable behaviour in their work teams or if they are requested to intervene by a member of their team. If a team leader, coordinator or manager approaches an individual directly about their behaviour they must record the actions taken. Team leaders and coordinators should know how and when it is appropriate to escalate an issue however if there is any doubt they must seek advice from their manager, Deputy General Manager or HR business partner.

The following table sets out the principles that should be applied when handling reports of workplace bullying and/or harassment:

Response

Measure

Act promptly Reports should be responded to quickly, reasonably and if possible, within established timelines. Relevant parties should be advised of how long it will likely take to respond to the report and should be kept informed of the progress to provide reassurance the report has not been forgotten or ignored. At least fortnightly updates should be given until the matter is resolved.

Treat all matters seriously All reports should be taken seriously and assessed on their merits and facts.

Maintain confidentiality The confidentiality of all parties involved must be maintained. Details of the matter should only be known by those who have a valid need to know.

Ensure procedural fairness The person(s) about whom the complaint is being made should be treated as innocent unless and until the allegations are proven to be true on the balance of probabilities. Allegations must be put to the person they are made against and that person must be given a chance to explain their version of events. The opportunity to have decisions reviewed must be explained to all parties.

Be neutral Impartiality towards everyone involved is critical. This includes the way people are treated throughout the process. The person responding to the report should not have been directly involved and they should also avoid personal or professional bias.



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Support all parties Once a report has been made, the parties involved should be told what support is available, for example employee assistance programs, and allowed a support person to be present at interviews.

Do not victimise It is important to ensure anyone who reports workplace bullying and harassment is not victimised for doing so. The person accused of workplace bullying and harassment and witnesses should also be protected from victimisation.

Communicate process and outcomes All parties should be informed of the process, how long it will take and what they can expect will happen during and at the end of the process. Should the process be delayed for any reason, all parties should be made aware of the delay and advised when the process is expected to resume. Finally, reasons for actions that have been taken and in some circumstances not taken should be explained to the parties.

Keep records The following must be recorded:

The person who made the report

When the report was made

To whom the report was made

The details of the issue reported

Action taken to respond to the issue including chronological case notes of all actions taken, letters, emails and telephone conversations sent and made.

Any further action required – what, when and by whom.

Records should also be made of conversations, meetings and interviews detailing who was present and the agreed outcomes.

INVESTIGATIONS Workplace bullying allegations of a serious or complex nature should always be investigated. Serious bullying allegations may include those:

covering a long period of time

involving multiple workers

where the alleged behaviours are in dispute

where other processes have not been able to resolve the matter. The aim of an investigation is to look into the circumstances of the matter and work out what has occurred. Once it has been determined that an investigation will be undertaken, the person conducting a business or undertaking should decide on the scope and process including:

who will conduct the investigation

details of the behaviour that will be investigated

how the investigation will be conducted

what the investigation aims to achieve

what support needs to be provided to the parties involved



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how outcomes of the investigation will be communicated and to whom. Investigations should always be carried out by an unbiased person who has experience and knowledge in dealing with workplace bullying matters. The decision on who will undertake an investigation will be made by the Human Resources unit, with input from Council’s executive management team if necessary. If being led internally it is important to ensure all parties have confidence in the neutrality of the investigator and they are suitably qualified to lead the investigation. If this is not possible an external investigator is recommended. The investigator should be impartial, objective and focus on whether an allegation of workplace bullying is substantiated or not, or if there is insufficient information to decide either way. To ensure the investigation process is conducted in a fair, objective and timely way it is important to inform the parties about:

who is conducting the investigation

conflicts of interest—these should be declared before the investigation proceeds

their obligations and the obligations of the investigator regarding confidentiality

their right to seek independent advice and representation and to have a support person present for any meetings

the expected timeframes of the investigation

how the issue will be investigated e.g. interviews with the parties and witnesses or viewing documentary evidence

who will receive copies of statements and records of interviews (if obtained)

who can be present at interviews

what support mechanisms will be in place for each party, including any interim measures to ensure the health and safety of the parties during the investigation process.

At the end of an investigation the investigator should submit an objective report to the Deputy General Manager in charge of the branch involved, who will then use the findings and recommendations of the investigation to make a decision. The findings should be communicated to the parties involved. If an allegation is substantiated, actions should be taken consistent with the Local Government (State) Award and Council’s Code of Conduct. The actions may be different in each situation and depend on the severity of the workplace bullying. Such actions may include:

gaining a commitment that the behaviour will not be repeated and monitoring this over time

providing information to workers to raise the awareness of workplace bullying

providing training or coaching e.g. leadership or communication skills

providing counselling support

reviewing the workplace bullying policy

addressing organisational issues that may have contributed to the behaviour occurring

requesting an apology



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providing a verbal or written warning

transferring a worker or workers to another work area

demotion, dismissal or other actions subject to the Award and the Code of Conduct. If an investigation finds a report of workplace bullying is not substantiated, assistance may still need to be provided to resolve outstanding issues. This may involve mediation, counselling or changing working arrangements. Mediation is a voluntary process where an impartial third party, preferably a trained mediator, assists the parties put their respective cases before each other. The role of a mediator is to help both parties understand each other’s perspective and to find an agreement the parties are willing to abide by. If the report is found to be vexatious or malicious, disciplinary action or counselling may be considered. Any action taken should be consistent with the organisation’s policies on misconduct and disciplinary action.

LEADERSHIP COMMITMENT Managers and supervisors are responsible for ensuring that employees are not harassed or bullied within the workplace or in connection with their employment. They must:

Ensure that all employees they supervise understand the Workplace Bullying and Harassment policy and procedure

Be a good role model and not engage in any behaviour which could be interpreted as harassment and/or bullying

Make it clear to all team members that they will not tolerate any unfair treatment, harassment or bullying from anyone in the team

Wherever possible, ensure that neither the work environment nor any work processes make it easy for harassment or bullying to occur

Follow up any team behaviour changes that could indicate that harassment or bullying is occurring

Act immediately if they witness or are told about any alleged harassment and/or bullying by following Council’s procedures

Provide staff with the opportunity to have a support person present, if they wish, when discussing alleged bullying or harassment matters.

ALL STAFF COMMITMENT It is the responsibility of all employees to not participate in harassing or bullying behaviour in the workplace. If you become aware that someone you work with is being harassed and or bullied, you have a responsibility to report this behaviour. You also should encourage him or her to report the unacceptable behaviour to their manager/supervisor if the harassment or bullying does not stop.



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APPEALING A BULLYING AND HARASSMENT OUTCOME Where a Council employee is not satisfied with the outcome of a bullying and harassment investigation, they may appeal in accordance with this procedure.

CONFIDENTIALITY All information provided by parties throughout the receipt and resolution of a complaint of workplace bullying or harassment will be handled confidentially. Confidentiality is essential when dealing with allegations of bullying or harassment as these allegations have the potential to cause damage to an individual’s reputation, regardless of whether the allegation is later found to be substantiated. Only those with a legitimate need to know, such as their manager, will be notified of any such allegations. Only the people directly involved in the assessment or resolution of the complaint will have access to information about the complaint. Any member of staff who becomes aware of information related to a complaint must also maintain confidentiality. A breach of confidentiality may result in disciplinary measures. In dealing with matters under these procedures, information that identifies or tends to identify complainant(s) is not to be disclosed unless:

a) the complainant consents in writing to the disclosure, or b) it is generally known that the complainant has made the complaint as a result

of the complainant having voluntarily identified themselves as the person who made the complaint, or

c) it is essential, having regard to procedural fairness requirements, that the identifying information be disclosed, or

d) the investigator is of the opinion that disclosure of the information is necessary to investigate the matter effectively.

BREACHES OF THIS POLICY AND PROCEDURE A breach of this procedure will be taken to be a breach of the relevant Code of Conduct and complaints alleging a breach of this policy must be made in accordance with the relevant Code of Conduct and will be dealt with in accordance with the provisions of the Procedures for the Administration of the Model Code of Conduct.


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APPENDIX A Bullying and/or Harassment Notification form

How to Use this Form

If you wish to make a formal complaint about Workplace bullying and/or harassment, you will need to complete this form. Advice about completing the form is available from your manager or Human Resources. Once completed, lodge the form with your manager or your HR business partner, who will check the form and clarify any details with you, including revising the form if you require and agree to the revision. Once it is finalised and signed, a copy of the Notification form will be given to the other people identified below as being involved in the bullying or harassment. Everyone involved must be provided with a copy of the Workplace Bullying & Harassment Prevention Policy and Procedure at the same time they are provided with a copy of the Notification form. Other than the people named in this form, and the manager or HR business partner involved in the matter, the Notification form and its contents must be kept strictly confidential.

DETAILS

Your Name:

Your work location:

Your telephone number: Mobile number (if applicable)

Please provide a brief description of the bullying and/or harassment that concerns you, including descriptions of the behaviour, where the behaviour occurred, and dates that the behaviour occurred. This information will help identify the best way to deal with your concerns. Add more pages if you need them. _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________

_____________________________________________________________________________________________________ _____________________________________________________________________________________________________


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Name(s) of person(s) or group responsible for the alleged bullying and/or harassment:

Name(s) of any witnesses to the alleged bullying and/or harassment:

What steps have you already taken to try to resolve your concerns with the other person(s) or group (if any)? _____________________________________________________________________________________________________

_____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________ _____________________________________________________________________________________________________

Do you have any special needs that require consideration? For example do you have a visual/hearing or other disability; do you need help to put things in writing? _____________________________________________________________________________________________________ _____________________________________________________________________________________________________

Signed: Date:

Received by:

Signed: Date

APPENDIX B Bullying and/or Harassment Complaint Flowchart

Allegation made in writing to either your direct

manager, to their manager, or to HR, using Bullying

and/or Harassment Notification Form (Appendix A).


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Complaint acknowledged within 2 working days.

Complainant interviewed

Complaint put to alleged perpetrator(s) and if

necessary, further evidence gathered

Finding made by investigator and reported to DGM

DGM determines outcomes and action to be taken

Parties involved are advised of outcome in writing

Right of appeal to GM, with GM’s decision final

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