How and When to Report Workplace Bullying

Vince Scopelliti - Wednesday, August 28, 2019

Workplace bullying can sometimes be difficult to identify. After all, people from many different walks of life are thrown together in a working environment, and this will often result in personality clashes and natural disagreements. Not everybody in the office will be friends with each other. 

So how can you tell when something has strayed into the area of workplace bullying? And how do you know when to deal with it formally? 

what is workplace bullying?

The simple definition of bullying in the workplace is 'repeated and unreasonable behaviour' directed towards an individual or a group of workers that is ultimately posing a risk to their health and/or safety. 

This may mean pranks or 'hazing', which threaten the physical health and/or safety of an individual can constitute bullying. Other types of bullying include psychological harm caused by aggressive behaviour, abusive comments, unjustified criticism, or subtler behaviours, such as excluding and isolating colleagues from activities in the workplace. 

In 2017, Safe Work Australia published statistics which showed that 39% of all mental disorder claims arising from the workplace, involved harassment or bullying. However not everything which is unpleasant or creates conflict in the workplace constitutes bullying. 

Management staff are entitled to engage in 'reasonable management action', intended to deal with workplace issues. Similarly, disagreements between co-workers which are appropriately managed or resolved need not constitute workplace bullying. 

On the other side of the coin, conduct which involves the victimisation of a person in a way that constitutes discrimination, is a separate category of workplace offence. Although clearly very serious, allegations of discrimination should not be conflated with the concept of workplace bullying. 

when should bullying be reported?

It is clear that the effects of workplace bullying can be far reaching. Bullying not only affects the mental and physical health of the employees directly involved, but can impose additional stressors on all staff and create disharmony in the workplace. 

A good litmus test for determining whether behaviours should be reported or formally dealt with as workplace bullying, is if the behaviours occur repeatedly. If the behaviour is repeated this suggests a wilful or reckless disregard for the needs of the bullied colleague and demonstrates a clear pattern of poor and inappropriate behaviour. 

In any event, reporting matters which make the workplace a less pleasant environment, is always a prudent course of action.

how to report workplace bullying

There are many different ways to report bullying in the workplace. Perhaps the simplest way is by reporting it directly to a supervisor, who then has a duty to pass the information further up the line. 

Of course, this can be problematic if the allegations of bullying involve the supervisor in question or someone even further up the hierarchy of an organisation. Alternatively, a report may be made to a Health and Safety Officer, or directly to the Human Resources team. As a last resort an individual could report the conduct to the Fair Work Commission, or the appropriate state agency such as SafeWork NSW, Victoria, SA etc. 

Depending on the nature and seriousness of the allegations, it may be appropriate to make the report in writing. 

There may well be circumstances, however, where it is preferable to make an anonymous report or otherwise not become too involved in the formal process. In these circumstances, a whistleblowing action may be the more appropriate way to make a disclosure. 

One of the key advantages of whistleblowing is that the bullying behaviours can be reported to a greater selection of people, including senior managers, officers of the company or any other person authorised to receive 'protected disclosures'. This can lessen any discomfort about reporting direct supervisors. The process is also confidential, and reporting can occur anonymously, which is likely to assist in the event of concerns about potential reprisals. 

If there are concerns about bullying in your workplace, there are simple and active measures that can be taken to address any concerns reported. WISE Workplace is an expert within the field of workplace bullying and offers organisations both investigation and whistleblowing services.  

Ruling on Anonymous Social Posts a Warning for Employees

Vince Scopelliti - Wednesday, August 21, 2019

In the highly-anticipated decision of Comcare v Banerji, the High Court has found it is not unconstitutional for the federal government to restrict the rights of public servants to express their political views in a public forum. 

So what does this decision mean for employees, freedom of political communication and the right to free speech? 

The facts of the matter

The respondent in Comcare v Banerji [2019] HCA 23, Ms Michaela Banerji, was employed by the Department of Immigration and Citizenship until September 2013. At this time, her employment was terminated for having breached the Australian Public Service's social media policy and code of conduct. 

Specifically, it was claimed that Ms Banerji had 'tweeted' several thousand posts under an anonymous handle. Those posts commented explicitly on the federal government; Australian immigration policy; ministers; opposition spokespeople and her specific department. 

Following her dismissal, Ms Banerji pursued a number of legal proceedings, claiming that her termination had breached her implied right to freedom of political communication. 

Ms Banerji was successful in her argument before the Administrative Appeals Tribunal, which held that the anonymity of her Twitter account meant that she could not be identified as a public servant and the policy of her employer had been applied too strictly. 

However, this decision of the AAT was ultimately overturned on appeal to the High Court.

the findings of the high court

In determining in favour of Ms Banerji's employer, the High Court explicitly found that, although the Australian Constitution provides a freedom of political communication, this 'is not a personal right of free speech'.

It was further concluded that, anonymous or not, the tweets threatened the 'integrity and reputation' of the Australian Public Service. Moreover, it was of relevance that Ms Banerji was a public servant, which would become topical if her anonymity was ever threatened.  

the wider implications of the case

As stated in the Administrative Appeals Tribunal's decision, placing such significant restrictions on - anonymous - public servants could be considered akin to dealing with 'thoughtcrime'. This means that society is imposing rules and punishments on people who have 'done nothing' other than have differing opinions. 

Ultimately, the decision means that employees, whether in the public or private spheres must carefully consider expressing opinions, be they political or otherwise, which differ from those of their employer. It is clearly unwise to post controversial personal opinions under a readily identifiable name, which could in turn identify and embarrass a worker's employer and lead to a conclusion that the opinions have caused damage to an employer's reputation for example. However, of some concern is the decision of the High Court in applying the Australian Public Service's standard and code of conduct requirements to anonymous tweets. 

This decision is particularly topical given the controversy over the recent legal proceedings involving Rugby Australia and Israel Folau, a devout Christian, 'cut and pasted' text on social media about homosexuality and hell. Given Folau's high profile as a rugby player, his employer Rugby Australia, terminated his employment. Folau is pursuing legal proceedings, arguing that his religious freedom has been interfered with as a result of his termination. 

Although the nature of the defence differs from that put forward by Ms Banerji, the ultimate concept is the same: private individuals are putting forward commentary on personal beliefs and opinions, but on a public forum, and are being penalised by losing their employment as a result. Rugby Australia maintains that Folau's breaches of conduct occurred repeatedly, and that he had been warned on several prior occasions about posting such commentary on social media. 

While it is not yet known what the outcome will be for Folau, it is clear that these cases have wide-ranging implications for organisations and employees. 

WISE Workplace is highly experienced at conducting investigations and the surrounding complexities of contemporary legal issues. If your organisation holds concerns regarding inappropriate social media use, WISE can conduct investigations and analysis of electronic evidence to establish defensible findings.

The Role of the Fair Work Commission in Workplace Disputes

Vince Scopelliti - Wednesday, August 14, 2019

There is a high likelihood that every employer will have to deal with action - or at least the threat of action - involving the Fair Work Commission (FWC). 

Let's take a look at the role of the FWC, and the importance of a defensible investigation report in the event an employee lodges a claim. 

what is the fwc?

The FWC is Australia's national workplace relations tribunal. It deals with a variety of workplace matters, such as salary disputes, enforcing agreements, reviewing workplace conditions, and making decisions on terminations. 

As part of making such determinations, the FWC has the power to impose an outcome on an employer and/or an employee. For example, if a person is considered to have been unfairly dismissed, the FWC may order that their employment is reinstated, or that compensation is payable. 

However, the FWC is not a court, and as such, its decisions can be overruled by a formal court judgement.  

how is the fwc approached?

Applications to the FWC can be lodged online or by mail. Except in certain circumstances where significant financial hardship can be demonstrated, a filing fee ($73.20 at the time of writing) is payable with the application. 

If a former employee wishes to lodge an application relating to unfair dismissal, it must be received by the FWC within 21 days of the official date of the dismissal. 

What does the fwc consider?

A number of different matters can be dealt with by the FWC. However, up to 40% of all applications heard by the tribunal involve claims for unfair dismissal. Other commonly heard applications include those seeking:

  • "Stop" orders for industrial actions;
  • Approval for enterprise agreements/clarification on the terms of an enterprise agreement;
  • Variations in salary awards;
  • An order to prevent bullying in the workplace;
  • A finding as to whether a disciplinary action is reasonable. 

what is the claims process?

Although the exact process differs slightly depending on the nature of the claim, the FWC may elect to: 

  • Recommend informal dispute resolution;
  • Proceed to a hearing of all interested parties;
  • Require written submissions by way of evidence;
  • Provide directions on dealing with the matter;
  • Make binding decisions. 

It is essential to the FWC process, that all matters are dealt with impartially and as swiftly as reasonably possible. 

the importance of a defensible investigation report

The involvement of the FWC generally means that, at some point, an employer will be required to provide evidence. Often, the best evidence available will be a properly completed investigation report. 

The existence of a robust investigation report may prevent a claimant from pursuing an application to the FWC in the first place. The FWC is also likely to look favourably on an employer who has engaged an unbiased external investigator to prepare a detailed report. 

Perhaps most crucially, the FWC will make an assessment on whether an employer's findings and actions are defensible. This will include close examination as to whether the employer can be demonstrated to have shown procedural fairness when dealing with an investigation. 

Dealing with matters brought before the FWC can be a stressful time for employers. WISE are proud that none of our decisions have been successfully challenged in the FWC. If you are looking for assistance to navigate the complex issues of workplace investigations, contact us! Alternatively, download our ultimate toolkit, which will give you confidence in making your workplace investigations procedurally fair, cost effective and consistent.

Making Findings in Workplace Investigations

Vince Scopelliti - Wednesday, August 07, 2019

When a workplace investigation is coming to an end, one task can seem deceptively simple - making findings. 

It might seem that because all the information is now available, the investigator can surely just state 'the obvious' in their report. Yet as with most tasks in the investigative process, quality outcomes require much greater consideration of relevant material. Before findings can be made, a thorough analysis of the evidence needs to occur. Findings will need to link clearly with this analysis - and all evidence must be considered.

Issues around organisational policies, plus the correct weight to be given to particular pieces of evidence, are further pieces in the puzzle of investigative findings that need to be addressed.  

analysing the evidence 

Workplace investigators are required to carefully and objectively analyse all available evidence. This includes the evidence that both supports and rebuts a likely finding. For example, if three workers said that it happened but one states that they are not sure, all four pieces of evidence must be analysed and discussed with equal consideration.

It is certainly unacceptable to simply discard a piece of evidence because it does not fit with the majority. As well as not being transparent, experienced investigators know that a small piece of contrary evidence might actually support a bigger finding at another point of the process. 

The analysis of all evidence will also incorporate the consideration of the weight to be attributed to each piece of evidence. This requires an investigator to consider for example the probative weight and value attributed to direct evidence in comparison to hearsay evidence. 

Findings need to be clear and defensible; links from evidence, to analysis, to findings and back again must be logical and well-explained. Essentially, the investigator is asking whether or not the evidence supports, on the balance of probabilities, the findings that are eventually made.  

following the organisation's policies  

As part of making accurate and defensible findings, investigators need to consider and understand the organisation's policies. Logically, in order to make a finding whether or not inappropriate behaviour has occurred, the first step will be an examination of the policy documents. 

Has the conduct in question as alleged breached a policy - and were the policies and procedures clearly understood by all concerned? General state and commonwealth laws will of course also play a part in findings, and in combination with organisational policies, will assist the investigator to mark the perimeters of acceptable behaviour.

weighing the evidence

Making findings can sometimes feel like the completion of a rather large jigsaw puzzle. Evidence is examined and analysed, with pieces being compared to one another for similarities and differences. Investigators need to consider the relevance of each piece of evidence to the allegations and overall investigation, giving more or less weight to some pieces of evidence over others for any number of reasons. 

Sometimes more weight will be given to a piece of evidence because it is for example, clearer, more compelling or better corroborated than other evidence.

remember briginshaw 

The care with which evidence is examined and weighed can have significant consequences for any potential future proceedings.

For serious allegations, employers will need to be able to rely on high-quality evidence from the initial investigation, in order to meet the evidentiary threshold. The standard of proof in all civil matters is 'the balance of probabilities', requiring that parties meet this standard via the evidence that can be marshalled in their favour. 

In matters where serious allegations have been made, the courts - beginning with Briginshaw v Briginshaw - have indicated that the standard of proof itself remains the same in all cases, but in serious matters where the finding is likely to produce grave consequences, the evidence should be of a particularly high probative value in order to meet the mark.

High-quality OUTCOMES

It is important for employers and their investigators to ensure that findings of workplace investigations can withstand the highest level of scrutiny and appeal. Given the complexities surrounding current workplace investigations, a high level of skill is required to ensure report findings are both sound and defensible. To ensure that you are assessing evidence effectively, WISE provides training in conducting workplace investigations