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Workplace BullyingA Time for Action

Presented by Michael Cosgrove

michael.workplacelawsbris@gmail.com

Bullying Behaviors

Typically Workplace Bullying can take many forms.

From the simple action of what you perceive as harmless

innuendo and sarcasm, to the very obvious physical

isolation, teasing and name calling.

The difficulty faced by every business owner, manager,

supervisor or team leader, is being able to ride the fine line

between “Managing” an “Bullying” an employee.

Todays Webinar

Todays webinar is designed to deliver, and reinforce, some

basic fundamental actions that employers and employees

can take to address bullying in the workplace.

Split into the following three sessions:

1. Risk Management Strategy’s

2. Incident Control

3. Legal Frameworks

What is Workplace Bullying?

Put simply, Workplace Bullying is:

The repeated, less favorable treatment of a person by

another or others in the workplace, which may be

considered unreasonable and inappropriate workplace

practice.

Cost to the organization

The impact of workplace bullying is truly un-measurable.

Failing to take action, primarily preventative action, against

bullying can cause high absentee rates, low morale, low

productivity, increased work-cover issues, discrimination

claims, and possible criminal action to name but a few.

Risk Management Strategies

Taking proactive steps in the workplace can significantly

minimize the potential for bullying to occur.

Employers must realize that every employee is different. Not

just male/female, but culturally, morally and ethically.

So what are some simple strategies?

Use a collective approach. Empower employees to assist

others when bullying is evident, and ensure that they know

that their assistance will not disadvantage them in any way.

Hold regular employee meetings (toolbox talks) and ensure

that bullying is on the agenda all the time.

Openly discuss any issues and reinforce to all employees

that bullying of any kind will not be tolerated in the

workplace.

Ensure all employees are aware of their rights, as well as

their obligations, and where necessary work individually with

employees to identify unacceptable practices and behaviors

and how to handle different situations.

Develop a robust Workplace Bullying Policy.

A policy must include a basic procedure for dealing with

bullying incidents including points of contact for employees

and managers, details of the EAP (if applicable) as well as

the procedure for reporting a bullying incident.

Conduct regular training sessions for both managers and

employees.

Four step process

There is a 4 step process to preventing workplace bullying:

1. Identify the Risk (of workplace bullying to the business)

2. Assess the Risk (of workplace bullying to the business)

3. Control the Risk (consult with employees and implement

strategies to mitigate risk)

4. Monitor and Review (this is an ongoing step to ensure

strategies are working effectively)

Identify the Risks

1. Observe if inappropriate behaviors are in the workplace.

2. Observe if any changes occur in employee behaviors

and identify if there is any HRM intervention required.

3. Observe changes in the workplace environment.

Assess the Risks

1. What is the probability of workplace bullying occurring?

2. What is the businesses current process for addressing

complaints?

3. What considerations have been given to the financial,

moral and legal costs of bullying?

4. Do additional steps need to be taken to prevent and/or

resolve workplace bullying in the business?

Control the Risks

This is the critical step.

This step itself requires a 3 stage approach.

Firstly there must be consultation and commitment by all

parties. Control measures must be developed, and anti-

bullying strategies must then be implemented.

It is imperative that this stage has full involvement with the

employees as well as management (Collective action)

Consultation and Commitment

Small to Medium businesses are time poor, and in most

cases do not have readily available access to adequate HR

support or advice.

A simple “employee survey” or “anonymous suggestion box”

can be effective in opening up communication lines.

Remember no 2 bullying incidents will be 100% identical in

how they occur, they can however be 100% identical in how

they impact the business and it’s employees.

Develop Control Measures

1. Develop a robust Workplace Bullying Policy

2. Include a detailed complaints procedure

3. Charter of employee rights

4. Code of Conduct

5. Periodic monitoring and evaluation of the work

environment to ensure policy compliance.

Implement anti-bullying

strategies

1. Collective approach

2. Consistent and constant education

3. Contact officer

Monitor and Review

1. Regularly collect and evaluate information in regards to

the performance of the strategies, as well as any other

employee feedback.

2. Evaluate the suitability and effectiveness of the

strategies and adjust accordingly.

3. Observe any changes in the work environment and

consult when necessary.

Incident Control

Before commencing with any investigation it is imperative that you be aware of the underpinning principles and an ethical investigation. These are:

S Natural Justice/Procedural Fairness.

S Standard of Proof

S Confidentiality

S Support the person making the complaint and any witnesses, but maintain complete impartiality.

Investigation tips and hints

Investigating workplace bullying, or indeed any workplace

relations issue, takes experience.

It is advisable to engage a competent external Investigator

should you not feel fully confident.

However, should you chose to investigate the complaint

yourself here is a basic investigative process, along with

some tips and hints to assist you.

S Interview the complainant first, in a comfortable and

relaxed area. Avoid high traffic areas such as lunchrooms

or open offices. It is my suggestion you chose a location

off site, or a remote location such as an office or

boardroom away from the main work area.

S It is likely that the complainant has opened up to another

worker, friend or family member. Allow them the option of

bringing a support person with them to the interview,

however, reiterate to the support person that they must

not interfere in the interview process.

S Prepare your questions in detail prior to the interview. A

good place to start is with the basic who, what, when,

where and why.

S Record as much detail in writing as possible.

Documenting the complaint and investigation in detail is

critical should disciplinary action be required later.

S Listen carefully to the complainant. Clarify any issues you

have at the time. Don’t wait till the end of the interview to

go back over anything.

S When interviewing possible witnesses remember to

reinforce confidentiality, and the need for honest and

open communication. Make sure they understand that

providing false and misleading statements could severely

jeopardize the investigation.

S Gather and consider ALL the evidence. Do not discount

any evidence or statements as being irrelevant.

Remember.

Something considered not important today, might be vitally

important tomorrow!!!

Once you have gathered all your evidence it is important to

ensure that if disciplinary measures are required that the

“punishment must fit the crime”.

Remember that whilst it is important to address the incident,

over-reaction and excessive disciplinary action can have a

detrimental effect on workplace culture, as well as impact

the business financially by way of avoidable legal action.

A single workplace bullying incident can have untold effects

on both the employees, and the commercial future of the

business as a whole.

It is imperative that employers and employees are not only

aware of the businesses policy and processes in dealing

with workplace bullying, but they should equally be aware of

their rights within the current Legal Frameworks.

Legal Frameworks

On the 27th June 2013 the Parliament passed the Fair Work

Amendment Bill 2013 that granted the Fair Work

Commission (FWC) jurisdiction to deal with workplace

bullying.

For the 1st January 2014 the amendments will allow a

worker who believes that they have been bullied to apply to

the FWC for an order to stop the bullying

The provision is not limited to employees, but extends to

contractors, labour hire and other workers engaged under

other workplace arrangements.

FWC has 14 days to commence dealing with the application

and may make any orders it considers appropriate to stop

the bullying, other than a payment of compensation.

Before making any order the FWC must be satisfied that the

worker would otherwise continue to be bullied.

Breaches of any orders may lead to penalties for both

individuals and companies.

It is interesting to note that “unreasonable behaviour” is not

defined in the Act.

Unreasonable behaviour can be simply defined as

behaviour that a reasonable person, taking into account the

circumstance, would see as unreasonable, including

behaviour that is victimising, humiliating, intimidating or

threatening in nature.

Form 72 Order to Stop

Bullying

Form 73 Employer Response

http://www.fwc.gov.au/documents/documents/forms/Form_F

72.pdf

http://www.fwc.gov.au/documents/documents/forms/Form_F

73.pdf

Decisions Decisions

S In Application by Ms SB [2014] FWC 2104 (12 May

2014), the Fair Work Commission (FWC) has provided

its first detailed insights into the types of conduct

that will – and won’t – constitute bullying under Part

6-4B of the Fair Work Act 2009 (Cth) (FW Act).

S The decision by Commissioner Hampton, the FWC’s anti-

bullying Panel Head, also explores the concept of

“reasonable management action” in the context of

alleged bullying.

Apart from the anti-bullying order made by consent between

the parties in Applicant v Respondent, PR548852, 21 March

2014, see the two decisions in Application by McInnes

[2014] FWCFB 1440 (finding that conduct prior to 1 January

2014 is relevant to the FWC’s determination of bullying

claims.

4 key points from

Commissioner Hampton

S Commissioner Hampton accepted that the making of “vexatious allegations”, spreading rude or inaccurate rumours, and conducting an investigation in a grossly unfair manner could be considered unreasonable conduct and constitute bullying underPart 6-4B if the conduct occurred repeatedly. So, too, could a manager be subject to bullying by employees that he/she supervises.

S However, the Commissioner made the following findings in SB’s case:

S There was insufficient evidence “to provide a basis for findings that an individual or group of individuals have repeatedly behaved unreasonably towards the applicant so as to create a risk to health and safety.”

S While some of the behaviour bordered upon unreasonable, Commissioner Hampton was not satisfied that “the limited degree of unreasonable behaviour by the individuals concerned was such that it created a risk to [SB’s] health and safety.”

S “The receipt of the two complaints by management and the conduct of investigations in response were not unreasonable. Indeed, that course of action was the only reasonable and prudent response.” Having the investigations conducted by an external law firm was also not unreasonable.

S In response to SB’s argument that her employer failed to take appropriate action to support her after the initial complaint by NP was investigated and found to be unsubstantiated – the employer did make some efforts to offer support, and SB actually “did not see the value of that support at the time and communicated this.”

S In conclusion, Commissioner Hampton determined that SB had not been bullied at work within section 789FD, and therefore there was no basis for the making of any orders.

Sarah Lock – workplacelaws@gmail.com

Michael Cosgrove –

michael.workplacelawsbris@gmail.com