Workplace bullying, discrimination and harassment are some of the most challenging issues for an employer to deal with. Deciphering what is and what isn’t bullying or how to actually deal with a harassment complaint when it comes across your desk, is often fraught with difficulty. High emotions are involved with the ‘he said, she said’ nature of accusations, boggling the minds of even the most experienced business owners or managers.
It would be easy to switch off to a claim of bullying or sexual harassment and simply ignore it. However, bullying and harassment poses not only a work health and safety risk to an individual, but also exposes employers to claims under work health and safety legislation, the Fair Work Act (2009) or applicable state and territory discrimination laws. In essence, as employers or HR managers YOU could potentially be personally liable in the event an employee sustains an injury (whether physical or psychological) as a result of bullying or harassment at work.
The high profile nature of bullying and sexual harassment has seen employees with an increased awareness of what is and isn’t acceptable and potential legal avenues available to them. Office flirting, initiation ceremonies, sexism and misogyny are now recognised as products of a bygone era: hiring the next Harvey Weinstein or worse, (doing nothing about Harvey’s behaviour once he is employed in your organisation) can be catastrophic!
What is workplace bullying and why should I care?
Workplace bullying is defined as ‘repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety’.
When we break this definition down, for behaviour to meet the legal definition of bullying it must be:
Repeated: which means it must constitute more than one event, but it doesn’t necessarily have to be the same event. Bullying can be a pattern of different types of behaviour.
Unreasonable: which is assessed by an objective test. Meaning, when a reasonable person stands back and assesses the conduct, is it unreasonable? It doesn’t matter whether the behaviour is intended to victimise or humiliate, it is whether a reasonable person would consider this to be the case.
Pose a risk to work health and safety: this is interpreted broadly. Causing an individual stress may be sufficient to pose a risk to their health and safety.
We are all familiar with the childlike nature of bullying in a school playground. Bullying at work, however, can be much more complex and subtle. Examples of direct bullying include abusive, insulting or offensive language or dangerous ‘initiation’ ceremonies. Indirect bullying can include unreasonable allocations of work, setting unreasonable time frames or denying access to information or tools required to do a person’s job. Indirect bullying can often be difficult to manage as it is usually based on a victim’s perception of a matter, rather than words that have been said to them directly.
Interestingly, bullying concerns a ‘worker’ as opposed to an ‘employee’. As bullying treads the line between an employment and work health and safety issue, a broader ‘worker’ definition derived from work health and safety legislation (WHS law) applies. Importantly, this broad definition captures other individuals who may be at your workplace, including (but not limited to) contractors, sub-contractors, work experience students, labour hire employees or volunteers. It is not strictly confined to the typical employee/employer relationship.
Managing bullying at work is fundamental: changes introduced to the Fair Work Act 2009 (Cth) enable a worker to apply to the Fair Work Commission (FWC) if they believe they are subject to bullying and harassment. The FWC cannot order financial compensation if they are satisfied that a worker has been bullied at work and there is a risk the worker will continue to be bullied at work, however, the FWC may make any orders it determines appropriate. These orders can include warnings, revising policies, training or working out ways to isolate the effected staff members from each other such as altering rosters, starting times or work locations: a task you can imagine could be difficult to orchestrate! In the event an employer contravenes an order of the FWC they may be liable to pay financial compensation to the victim to compensate them for loss or damage or a financial penalty imposed by the FWC.
Importantly, in the event an employer does nothing to address bullying or harassment claims, it will be difficult to demonstrate the organisation has met their WHS obligation to take all reasonable steps to ensure the workplace is safe. This could trigger a breach of WHS laws and subsequent penalties.
What isn’t bullying?
Reasonable management action conducted in a reasonable way is not bullying. Simply, a manager can make decisions about performance or manage how work is being conducted and not trigger the legal definition of bullying.
Having frank and open discussions about performance or conduct is crucial to running a business and maintaining control over staff. However managers must be mindful to focus on performance or conduct and not the individual traits of the worker. It is common to see an individual who is subject to performance management make a bullying claim. This often causes a tumbling domino effect: an employee will feel bullied and harassed, access leave and make a complaint in order to derail the performance management process. This situation is all too common and often can require external advice.
Organisations need to place themselves in a sound position where they can confidentially say, all concerns were raised for the right reasons and in an appropriate manner. For this reason it is always recommended strategies are adopted for having discussions with employees. These strategies can include linking any discussion about poor performance to an employee’s KPI’s or any discussions about inappropriate behaviour to a code of conduct or policy. These factors are objective and mitigate the risk of an employee saying they were ‘picked on’ i.e. their performance was marked as a concern for no ostensible reason at all.
Creating a ‘bully-free’ organisation
Prevention is better than the cure! The number one way to eliminate the risk of bullying occurring in the workplace is to create a work environment that does not tolerate bullying.
The first step in creating a ‘bully-free’ work environment is establishing a sound policy that highlights:
- Workplace bullying is illegal;
- What behaviour does and does not constitute bullying; and
- What an employee should do if they suspect they are being bullied.
Ensuring all staff have a clear understanding of the behaviour that constitutes bullying will assist in limiting the volume of frivolous claims. It is all too common to see a HR manager who is at their wits end dealing with a complaint by employee X about the time employee Y didn’t say goodbye to them. Having a clearly defined definition of bullying (that is consistent with the law) can enable these types of claims to be shut down rather quickly. It is also important that employees are aware that making vexatious claims (or a claim out of spite) against another employee for (non-existent) bullying, is a form of misconduct.
Once a bullying policy is drafted, it will need to be implemented. This is where regular training becomes important. All employees should be issued with a copy of the policy and required to sign off that they have read and understood it. Re-fresher training should ideally be completed each year to avoid the risk of an employee stating they ‘don’t know’ or ‘don’t understand’ the policy. Managers should keep a record of all new employees to ensure they have completed the training. Training can be completed internally or can be outsourced. However, it is paramount sound records of when the training occurred and who attended are kept.
When an employee is accused of bullying, it is useful to bring their behaviour back to the policy. For this reason, even if you are comfortable with your policy it can often be useful to have a second set of eyes to confirm it is sound and legally compliant.
Ways to tackle a bullying complaint?
Not only does bullying pose a work health and safety risk to a worker (and could see your organisation before the FWC), having a workplace with a bullying culture can drastically put the brakes on your business reaching its potential. Effects of bullying include negative impact on staff morale and productivity and additional costs to the organisation in terms of any legal costs or time spent dealing with a complaint.
When a bullying complaint lands on your desk, it is important to have a discussion with the complainant and gain all detail you can. This includes dates, times, witnesses and context. Having this detail is essential. Someone can’t answer to allegations of being a bully if it is unclear what those allegations are. Essentially, when dealing with any bullying complaint ‘procedural fairness’ must be front of mind. Whilst it can be tempting to side with the complainant and overlook inconsistencies and omissions in their evidence, the ultimate procedural fairness is owed to the accused. At the end of the day they are the employee who could lose their job should the accusations against them be substantiated or should their responses be insufficient. For this reason and to eliminate a post-employment claim from the accused, it is important a proper process is follows.
Once the allegations against an employee are clear an investigation process would normally commence. This requires a number of additional considerations including what policies, procedures or laws the conduct complained of is in breach of? Likely witnesses? And any time restraints that may apply? An employer is would then usually issue a detailed list of allegations to the accused bully which they then will be required to respond to. A decision maker from your organisation will then be required to make a decision, on the balance of probabilities (more likely than not) as to whether the conduct complained of actually occurred.
The investigation process can often be tricky. Whilst it is tempting to ‘rip into’ the investigation, it is worthwhile taking a step back and considering the best approach to adopt. This can be formal or informal however it is advisable that claims made by senior staff members or those concerning serious allegations are investigated formally. Formal investigations often require external assistance with facilitating the process- including sending letters and meeting requests.
There may also be addition considerations required of your organisation such as whether or not to stand an employee down whilst a complaint is considered. It can often be worth seeking advice to ensure a sound process is followed that exposes the employer to minimal risk. Some organisations due to resource constraints or staff being ‘too close’ to the issue, also choose to outsource investigations.