The Year that Was: Lessons from 2015 Part 1

Jill McMahon - Monday, January 18, 2016
Lessons to be learned from 2015

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

When is employee conduct considered to be 'at work'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

  • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
  • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
  • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
Developments in workplace bullying

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

Employers must:   

  • Take seriously any complaints concerning the conduct. 
  • Take immediate action to stop the conduct. 
  • Have proper policies and procedures and educate all staff about appropriate conduct. 

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

Secret Santa Shockers: How to Have a Work-Safe Kris Kringle

- Monday, December 07, 2015
Perils of the Office Secret Santa

Secret Santa, also known as Kris Kringle, is a gift-giving tradition celebrated by workplaces all over Australia. Although popular, it also has the potential to go wrong. Following on from our article on hosting incident-free work Christmas parties, we take a look at the potential risks of the office Secret Santa, and what preventative action organisations can take.
What is Secret Santa?
Secret Santa is started by putting staff members’ names into a hat. Each staff member must draw a colleague’s name and that is the person for whom they must buy a present. They must not tell anyone who they have drawn. 

While intended to be a good-natured way to spread some Christmas cheer, the problem is that jokes can often fall flat, and because the gifts are anonymous, the Secret Santa can be used to give a message to the recipient that the gift-giver would not ordinarily share face-to-face. 

 What is intended to be good-natured fun can easily lead to distress. There can also be legal consequences.
Secret Santa gone wrong
In 2012, public servant Ngoc Luan Ho Trieu, who worked as an economic modeller for the Commonwealth Government, was distressed by a Secret Santa gift. It was a plastic reindeer that produced chocolate droppings from its rear end. It was labelled “Luan’s Modelling Kit.” 

Mr Ngoc believed that the implication was that his work resembled animal poo. The identity of the gift-giver was never determined, and some weeks later he quit his job, unable to shake the feelings of distress. 

In response to the incident, the Australian Public Service (APS) issued a warning to staff in its November 2015 newsletter: 
“In keeping with the spirit of happiness and goodwill, APS employees are reminded to exercise care and good judgement as some elements of the APS Code of Conduct apply to activities ‘in connection with’ APS employment.” 

Employees were warned against engaging in pranks and were asked to be mindful that not all employees shared the same sense of humour.
The legal implications
The big question for organisations is how to manage Secret Santa. While the APS did the right thing in issuing the warning to employees, perhaps more should have been done. 

The Canberra Times also reported that after publishing Mr Ngoc’s story, it received many other reports of employees being left upset by Secret Santa gifts. 

There is great potential for legal implications to flow from a Secret Santa present. It may be seen as a form of bullying, for example the employee who was given a dog-chew toy. Employees may also feel discriminated against, for example the worker, being the only Asian in her section, who received a gift implying that her English was poor. 

Gifts that have sexual connotations may also be viewed as sexually harassing and other gifts may offend workplace health and safety laws.
How to manage Secret Santa
When it comes to Secret Santa, written reminders need to be given to all staff about appropriate conduct. For example, organisations should remind staff that: 

  • As Secret Santa is work-related, all work policies apply, including anti-bullying, discrimination and harassment, and discipline and termination of employment.
  • Their gifts must reflect the organisation’s requirement that all employees are treated in a respectful and courteous manner. 
  • Not everyone shares the same sense of humour so gifts should be carefully chosen.
  • Anyone who feels upset or distressed by a gift should inform management immediately so that the matter can be appropriately handled. 
A “master” sheet may also be useful, on which the name of the gift giver is recorded next to each recipient. This can be kept confidential unless a problem arises and needs to be sorted out.  Employees should be advised that a master sheet will be kept as it will help to regulate gift-giving behaviour. 

And finally, if your organisation has had problems with Secret Santa in the past, consider whether it is appropriate to run it again. Secret Santa is a nice idea but increasingly fraught with difficulties. Although workplace laws have not developed to specifically deal with the scheme, many other laws come into play which should be taken seriously by organisations.

Sticks and Stones: The Physical Impact of Bullying

- Monday, November 09, 2015
The Physical Impact of Bullying

With the federal government increasingly exercising its legislative muscle when it comes to workplace bullying, employers are expected to be vigilant in prevention and to properly deal with bullying when issues arise. One of the key areas is work health and safety (WHS) and the physical impact of workplace bullying.

WHS requirements

WHS legislation requires that employees are safe from physical or psychological harm at work (including workplace bullying). There are criminal sanctions for any breaches. Everyone in a workplace has an obligation to ensure their own safety and that of others, and employers must provide and maintain a safe workplace. This means that everyone in a workplace must try to ensure that workplace bullying does not occur.

Physical impact of bullying

The psychological impact of bullying is well documented, including anxiety, depression, mood swings, panic attacks, impaired concentration and loss of self-esteem. The federal government’s publication Bullying in the workplace: A guide to prevention for managers and supervisors also gives a list of physical symptoms, including digestive problems, skin conditions and musculoskeletal disorders (for example fibromyalgia). According to the US Workplace Bullying Institute, other issues can include:

  • High blood pressure.
  • Heart palpitations or heart attack.
  • Severe headaches.
  • Post-traumatic stress.
  • Nausea.
  • Lack of coordination.
  • Uncontrollable crying.
  • Eating disorders.
  • Reduced immunity.
  • Fatigue.

The guide notes that physical factors impact an organisation in many ways, including lost productivity due to illness, higher staff turnover, poor public profile, increased time and expense spent managing the problem, and potential workers’ compensation claims and litigation.

Further, even though bullying is often subtle, covert and difficult to detect, organisations must have in place proper systems and procedures for educating employees about bullying, identifying and preventing problems, and adequately responding to complaints. Bullying must be identified, assessed and controlled in the same way that any other WHS hazards are managed. 

the consequences can be tragic

It may seem that an employee taking time off to get over a cold or because of a headache isn’t really a big deal. After all, that’s why they have sick leave. But the risk is that if left unchecked, any harm that an employee is suffering as a result of bullying can escalate with disastrous consequences. 

Take the case of Victorian teenager Brodie Panlock. She was subjected to appalling treatment at the café where she worked, including being verbally humiliated by her manager and co-workers, covered in chocolate sauce and on a number of occasions was held down and had oil poured over her head. Brodie resorted to self-harm by cutting herself and later taking rat poison and alcohol. Horrifically, shortly afterwards she committed suicide. The café owner, manager and two of the co-workers were charged and fined under WHS legislation. Later, the Victorian Government enacted Brodie’s Law, criminalising serious workplace bullying and imposing a maximum prison term of 10 years.

Then there’s the case of 16-year-old apprentice Alec Meikle who was subjected to extreme verbal and physical abuse by his supervisor and co-workers. Within three days of commencing work, he was called abusive and derogatory names, which continued on a daily basis. He was burnt with a welding torch, sprayed with glue and set on fire. His co-workers had also threatened to anally rape him with a steel rod if he made too many mistakes. The bullying was so severe that Meikle left the company after three months. But the effects stayed with him. He was diagnosed with anxiety, depression and an adjustment disorder. Following a hospital admission, he tried to kill himself. Then a few months later, he committed suicide. It was clear that he could not overcome the effects of the abuse, even after leaving the workplace and with medical treatment and close monitoring. 

Although the subsequent coronial inquest ultimately made no findings, the matter serves as a warning that the effects of bullying can continue long after the conduct has stopped. It is another reason for employers to be vigilant in prevention, monitoring and actively dealing with bullying issues.

The physical impact of workplace bullying is a serious issue. If you are concerned about possible bullying incidents in your workplace, or wish to develop strategies for prevention, WISE Workplace can help.  

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December



Stop Bullying Orders: How is the System Working?

- Monday, November 02, 2015
Stop Bullying Orders

In January 2014, the anti-bullying provisions of the Fair Work Act came into effect. They included provisions for Stop Bullying Orders (SBOs). In this article, we take a look at how the SBO system is working so far.

Why were the orders introduced?
Early intervention in workplace bullying is essential to prevent further harm to the victim. In other words, stop it before it becomes embedded in workplace culture. With this in mind, SBOs have been designed to give workers fast and cost-effective access to the Fair Work Commission (FWC). 
How does the system work?

If a worker and employer cannot resolve the situation themselves, the worker can apply for an SBO by lodging a Form 72 in the FWC.  Within 14 days, the FWC must send a copy of the application to the employer, who has a further seven days to respond. The FWC then decides how to deal with the matter – it may be mediation (an informal, confidential and voluntary process), or by conference or hearing, in which the FWC will consider how the legislation applies to the situation. 

The FWC can issue a broad range of orders including:

  • Stop bullying. 
  • Behaviour monitoring. 
  • Compliance with policies. 
  • Worker training and support. 

Failure to comply with the orders can lead to fines of up to $6,000. Workers may also choose to take other civil action against the employer, or make a complaint under workplace health and safety laws.

Legislative requirements

In determining whether to grant an SBO, the FWC must be satisfied that:

  • The worker has been bullied at work.
  • There is a risk that the bullying will continue. 

The bullying must be repetitive – a single incident is not sufficient. There must also be a real risk to the worker’s occupational health and safety if the situation is not resolved. The employer can rebut the application by demonstrating that it has acted in a reasonable manner in all the circumstances. 

How the law has developed
With the rise of social networking has also come cyber bullying, complicating the meaning of “at work.” The FWC recently found that if an employee had accessed social media at work, then any social media posts that may constitute bullying had also occurred “at work”. In other matters, the FWC has also held that:
  • If an employee has left the workplace, there can be no SBO as there is no risk of the bullying continuing. 
  • Any behaviour predating January 2014 (when the laws came into effect) can be relevant.
  • It is “reasonable management action” for an employer to investigate a complaint, so long as it is done in a reasonable manner.

The FWC will create orders tailored to the specific circumstances, including orders against the employer, another employee or even a site visitor. It may make individual or group orders (or both). For example, in its first formal SBO ruling, the FWC ordered that:

  • The parties not approach one another.
  • The employer implement anti-bullying policies, procedures and training. 
  • The employer clarify its arrangements for reporting bullying. 
Lessons for employers

The FWC’s considerations of SBO applications reveal a number of lessons for employers:

  • Employers are still able to manage poor performance issues, take disciplinary action and give constructive feedback so long as they can demonstrate reasonable action. 
  • Organisations should have policies and procedures for effectively dealing with bullying, which should be regularly reviewed and updated.
  • All staff should be trained in bullying behaviours and consequences (including policies and procedures) at induction and regularly as part of workplace health and safety training. 
  • Employers should strive to stamp out a bullying culture, not only for the wellbeing of employees but also to minimise lost productivity, legal fees and negative publicity.
  • As it is possible that SBOs may be later used in workers’ compensation claims or civil damages claims, it is in the employer’s best interests to minimise any damage caused by bullying. 

In all, the system seems to be working as intended, although it is hard to imagine that aggrieved employees can easily slot back into their workplaces after being through the SBO process. What is certain is that workplace bullying is a very serious issue, and the message for employers about the need to prevent and deal with it is clear. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 1-3 December


From Cyberspace to Head Space

- Monday, October 05, 2015
Workplace bullying spills over to cyberspace

So much of our lives are lived online these days, and even workplace bullying has made the leap to cyberspace. As one recent case before the Fair Work Commission (FWC) illustrates, employers need to be vigilant about what happens both in the office and online, as bullying spills beyond the boundaries of the physical workplace and on to social media.  

A case with a social media aspecT

In late September 2015, the FWC issued a stop bullying order in response to an application made by a Tasmanian real estate property consultant. She alleged that she had been bullied by the sales administrator Mrs Bird (who was also one of the owners of the business), almost from the commencement of her employment in May 2014.   

In one key incident, there was an impromptu meeting between Mrs Bird and the applicant, in which Mrs Bird accused her of being disrespectful and undermining her authority. Mrs Bird said the applicant was a “naughty little schoolgirl running to the teacher.”   The applicant tried to leave the room but Mrs Bird stood in the doorway, blocking her path. The applicant was humiliated and distressed and left the office to compose herself. While she was out, she checked her Facebook account and discovered that Mrs Bird had unfriended her. Shortly afterwards, the applicant took two weeks’ sick leave, followed by a workers’ compensation claim. 

The FWC found that found that Mrs Bird’s schoolgirl comment was “provocative and disobliging” and that the Facebook unfriending showed a “lack of emotional maturity and [was] indicative of unreasonable behaviour.”   

The applicant had been diagnosed with depression and anxiety for which she was being medicated and treated by a psychologist. The FWC found that Mrs Bird’s conduct posed a risk to the applicant’s health and safety. The FWC was satisfied that bullying had occurred and there was a risk that it would continue. Even though the employer had recently implemented an anti-bullying policy and manual, Mrs Bird and the employer had failed to appreciate the seriousness of the conduct.   

The FWC issued a stop bullying order, and referred the matter to a conference to be resolved.

Use of social media in workplace bullying

In 2014, the NSW District Court determined that cyberbullying could happen anywhere, not just in the physical work environment. The court was considering a case in which a teacher was suing a former student for defamation after the former student posted a series of defamatory tweets on Twitter.   

This highlights the need for employers to take immediate action if employees are found to be posting negative or defamatory comments on social media, regardless of whether the comments are about other employees, or external people or organisations.

The impacts of cyberbullying

Cyberbullying can impact an organisation in a number of ways, including:   

  • Management time spent investigating and managing complaints. 
  • Management time spent in FWC hearings. 
  • Increased employee sick leave and decreased productivity. 
  • Risk of workers’ compensation claims. 
  •  Increased friction between staff.   

Workplace cyberbullying should also be taken seriously because the employee can be exposed to the information online at any time – at work or at home. In other words, they have no escape.   

Psychological health is also a huge factor in workplace bullying and this case shows the psychological damage that bullying did to the applicant, exacerbated by the Facebook unfriending.  

The psychological impacts of bullying can include:   

  • Depression. 
  • Anxiety. 
  • Low self-esteem. 
  • Panic Attacks. 
  • Fatigue. 
  • Post Traumatic Stress Disorder. 
  • Suicidal thoughts.
Employer duty of care

Employers have a duty under occupational health and safety laws to provide a safe workplace for all employees. This includes a workplace that is free from bullying. Even though the FWC considered that the bullying of the applicant in this case posed a risk to her health and safety, it was concerning that the employer failed to recognise the seriousness of the conduct.   

Workplace bullying is no joke, as demonstrated by this case. It highlights the psychological impact of bullying and shows how social media can inflame the situation. Employers must be vigilant in monitoring the online activities of employees and educating them about appropriate conduct. This starts with a comprehensive policy and training. Employers should also take complaints seriously and investigate them thoroughly.   

The prevalence of social media use means that bullying issues have become far more complex to investigate and manage. If you have or suspect a bullying issue in your workplace, or would like assistance in writing guidelines or investigating complaints, contact us.

Cut to the Quick Part II: What Happens Next?

- Monday, September 28, 2015
Encouraging Reporting

It’s a delicate balance; how do you encourage employees to speak up about bullying and harassment in the workplace if they fear doing so will harm their career?

This is a central issue stemming from the release of a draft report into harassment, bullying and discrimination in the practice of surgery. The report, released earlier this month, found nearly half of junior respondents reported that they had been subjected to some form of abuse. Senior surgeons and consultants were thought to be the primary source of the problems. 

Some of the reasons for reluctance or failure to complain about poor treatment included:

  • Fear of damaging future employment prospects.
  • Lack of confidence in the handling of complaints.
  • Abuse of power and bystander silence.

In our previous article, we looked at the findings of the report. 

This week we ask the question: What can you do if people are being abused at work but don’t feel they can report it?

Two of the most obvious solutions are to establish a whistleblower hotline, and to put confidential reporting systems in place.

Blowing the whistle

Setting up a whistleblower hotline allows for the whistleblower's confidentiality and anonymity to be maintained as far as possible. Information on how to make a report and the process for the handling of tips should be clearly outlined and available.There are a number of other things employers can do to support whistleblowers, including:

  • Encourage whistleblowers to seek legal advice early and to foster strong partnerships with their legal advisors.
  • Encourage whistleblowers to use internal complaints processes before using formal external avenues (for example, complaints to government bodies).
  • Compensate for lost income, other damages and if applicable, reinstatement to employment.
Confidential reporting systems

The first step is to make sure that policies governing bullying and harassment in the workplace are available to all employees. Clear guidelines for the submission and handling of complaints or concerns should be in place, whether you set up a phone line or online reporting.

Other factors to consider include:

  • Engagement of an independent third party to receive complaints.
  • Allowing complaints to be lodged anonymously.
  • Allowing complainants to anonymously follow up on their complaints. 
  • Keeping a log of complaints details - their receipt, investigation and resolution.
  • Providing avenues for confidential advice to be given. 
Possible solutions in the surgery field

Interestingly, by far the most compelling ideas for fixing the problems in the practice of surgery came from the respondents themselves, many of whom chose to anonymously offer suggestions via online forums that were facilitated by the Expert Advisory Group (EAG) that was set up to research and write the draft report. They included: 

  • The Royal Australasian College of Surgeons (RACS)  to provide leadership to promote a culture of change.
  • Women should be appointed to leadership positions in RACS for role-modelling and mentoring.  An independent body, much like an ombudsman, to be established for complaints handling.
  • Data collection and reporting to be handled by an independent body.
  • An independent training body to be established to teach senior surgeons how to provide feedback and support for trainee doctors.
  • RACS governance to be reviewed to ensure its independence.Improved performance management, accountability and transparency.
  • Improve work/life balance issues.
  • Review of examinations and assessments to provide increased transparency and procedural fairness.

It remains to be seen what action will be taken. What is certain is that without change, society will pay the price for the attrition of junior surgeons who simply cannot (and shouldn’t have to) stand up to the abuses inflicted upon them by their superiors. The problems in this field are certainly not unique, but they do highlight the need for all employers to put appropriate protections and avenues for complaint into place.

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December




Cut to the Quick

- Monday, September 21, 2015
Surgeons Under Fire in Wake of Report Findings

In April 2015, at the launch of her new book, senior surgeon Dr Gabrielle McMullin sent shockwaves through the medical community. She declared that junior female surgeons and surgical students would be better off acquiescing to requests for sexual favours by their senior male colleagues, as refusing requests or taking action against them would be sure to be the end of their surgical careers in Australia.

Although she was criticised for her view, her comments did make everyone sit up and listen. 

The story was reported in the media and the powers-that-be also took note. The Royal Australasian College of Surgeons (RACS) commissioned an Expert Advisory Group (EAG) to report on discrimination, bullying and harassment in the practice of surgery. The draft report has now been released. 

Draft report findings

The draft report, released earlier in September, confirms that discrimination, bullying and sexual harassment are “pervasive and serious problems in the practice of surgery” and the effects are “significant and damaging.” It also finds that many surgeons do not believe the problems exist. 

The report’s key findings are that: 

  • Almost half of Fellows, trainees and graduates have experienced discrimination, bullying or sexual harassment.
  • 54 per cent of trainees and 45 per cent of junior Fellows have experienced bullying. 
  • Bullying is the most frequently reported issue in hospitals, followed by discrimination, workplace harassment and sexual harassment.
  • The problems occur in all surgical areas.
  • Senior surgeons and surgical consultants are reported as the primary source of the problems.
  • The most common form of discrimination is cultural, followed by sexual discrimination. 
  • The gender inequality in surgery means that the behaviour of senior surgeons and consultants towards more junior females often goes unchecked. 

ABC News has documented the disturbing stories contained in the report, such as one female student who was expected to provide sexual favours in return for tutorship, and another respondent who said “I was subjected to belittling, intimidation and public humiliation.” One woman said that she was required to work 30-hour shifts into the final weeks of pregnancy, and another said “I was told I would only be considered for a job if I had my tubes tied.”

Why not complain?

Why not complain about the bad treatment? The report found that there were plenty of reasons for victims to keep quiet: 

  • Fear that complaining would be an act of “career suicide” – that future employment prospects would be damaged.
  • Lack of trust and confidence in the complaints handling process.
  • Surgeons lacked the people and teaching skills to provide adequate education.
  • Lack of transparency and independence across the board – for example, complaints handling, data management, feedback and assessment.
  • Bad behaviour being passed from teacher to student, abuse of power and bystander silence.
  • Conflicts of interest as senior surgeons protect their market share by victimising more junior staff.
  • Poor work practices including long hours, unpaid work and inattention to work-life balance.
The response to the draft reporT

In response to the draft report, the RACS issued a statement accepting its findings and saying that:

“The College has apologised, on behalf of all Fellows, Trainees and International Medical Graduates, to everyone who has suffered discrimination, bullying or sexual harassment by surgeons.”

With the final report due in late September 2015, we now wait to see how RACS proposes to deal with the issues. There is certainly much to do – throughout the report there are quotes from doctors who do not recognise the problem, such as “surgery is a stressful speciality. If you can’t deal with the stress, and that includes bullying, you should choose a different profession.”

With bullying, harassment and discrimination being so entrenched in surgical practice, it is clear that a massive cultural change is needed and this will take time to effect. Surgeons perform such important work and their training is so extensive that any attrition because of these behaviours is damaging to the wider community. Let’s hope a solution can be found that has far-reaching and long-term effects. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.

CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December



Essential tips on moving forward…and leaving bullies behind

- Monday, September 07, 2015
Organisational Change and Workplace Bullying Complaints

In hindsight, a workplace bullying situation can seem both regrettable and avoidable. Yet time and again, we find that the circumstances leading to the making of a bullying complaint were predictable, or at least displayed a reasonable risk of complaints of bullying occurring. 

What we can all agree on is by the time a complaint has been made, much of the damage has already been done. Prevention is the best medicine. 

We examine three of the key structural precursors to workplace bullying complaints, which business owners and managers should keep an eye out for. Through the prism of real-world cases, three common structural precursors to bullying complaints are highlighted: 
  • Long-term borderline poor performance issues. 
  • Replacement of someone in an acting position. 
  • Placement of a new manager into an established team. 
What all these have in common is organisational change. 
Cases to consider
1. Long-term borderline poor performance issues 

In a recent hospital-based matter, the complainant, enrolled nurse (C), raised allegations of inappropriate action by management. This included being telephoned at home while on sick leave, being refused weekend shifts, and not having her university commitments accommodated in the roster. C had been on and off performance management programs for 24 months when supervisors received a complaint regarding her performance from a doctor and took more decisive action. 

C claimed unfairness in the investigation; doctors at the hospital had allegedly been invited to complain about C, and the complainant had been given no right of reply. As a result of the complaints, C was required to undergo further nursing assessment and restricted work hours that meant loss of shift penalties. Much of the management action was found to be reasonable in this case, but given the long-term nature of the performance management and ongoing dissatisfaction of the complainant, despite the outcome of an investigation into the allegations of bullying, C was unlikely to be satisfied unless the finding was in her favour. 

2. Replacement of someone in an acting position 

In another matter, an existing employee R alleged that she had been the subject of workplace bullying by the new manager W. Hostilities commenced only weeks after W arrived in the new position, usurping R in her established communications with the Director. Early complaints were made but dismissed as teething problems. The conduct didn’t subside, with the investigation establishing that while some of the behaviour towards R was reasonable management action, much of it, including the withholding of leave application approvals and the allocation of tasks outside of R’s capabilities, was bullying. 

3. Placement of a new manager into an established team 

This is often done following a restructure or to bring about cultural change, but when new managers are asked to lead established teams it can be a catalyst for a very unhappy workplace. If not managed correctly, the subculture of the team will seek to test the manager and resistance for change can lead to feelings of isolation and bullying in the manager. A change of direction and new demands on employees can also create feelings of injustice in the team, leading to cross complaints.
Organisational change
These three very typical cases demonstrate the types of situations where, through the process of organisational change, feelings of bullying can arise. But how do we prevent such complaints and circumstances without the benefit of hindsight? 
  • Awareness 
  • Risk assessment 
  • Rapid response to early signs 
  • Focus on fairness in outcomes 
Awareness

The first step is being aware of situations where complaints could arise. Being aware automatically makes us sensitive to avoiding difficult situations and conflict. 

Risk assessment 

With organisational changes, the implications of certain decisions on teams should be subject to risk assessments that include consideration of moral impacts on individuals and the likelihood of complaints of bullying. Once assessed as a risk, preventative measures can be adopted to reduce the likelihood of such events occurring. 

Rapid response to early signs 

It is very tempting to dismiss early signs of disharmony and adopt the head in the sand approach to interpersonal conflict. In some cases, this strategy works and the problem appears to go away. When it doesn’t, however, the problems are multiplied and positions become entrenched – making mediation and resolution much more difficult. 

Focus on fairness in outcomes 

Finally, when conflict is addressed, early stages of intervention should focus on the end game rather than remaining in the past. If parties can be brought to a position where they want their working relationship to be now, rather than focusing on the rights and wrongs of yesterday, it may be possible to turn the situation around, avoiding continued conflict and complaints.

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)


Over 2 days rather than 3
Special discounted rate of $1400
Location: Brisbane
Date: 16-17 September

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December



First Formal FWC Ruling Since Introduction of Bullying Rules

- Monday, August 10, 2015
First Formal FWC Ruling Since Introduction of Bullying Rules


The Fair Work Commission (FWC) has issued a formal ruling for a Stop Bullying Order under section 789FF of the Fair Work Act. It’s the first formal ruling since the anti-bullying provisions of the Act came into effect on January 1, 2014. 

The Details of the case 

In the ruling on August 5, the FWC de-identified the names of all parties. The case involved two employees of a real estate business who applied to the FWC for a Stop Bullying Order, alleging that a manager at the workplace had engaged in:

  • Belittling conduct. 
  • Swearing, yelling and use of other inappropriate language. 
  • Interfering with and undermining the employees’ work. 
  • Physical intimidation and “slamming” objects on the employees’ desks.
  • Attempts to incite the applicants to victimise other staff members.
  • Threats of violence.

The employer had conducted an informal investigation of the allegations, and attempted mediation between the parties, which was unsuccessful. In the end, the manager resigned from her employment, and was then employed in another related business. The employer believed that the manager’s removal from the workplace had solved the problem. 

But the manager was then seconded back to the workplace – a placement that was intended to be short-term – which saw her physically back in the company of the employees. The employees applied to the FWC for a Stop Bullying Order, made workers’ compensation claims and underwent medical treatment. At the time of the hearing, both employees were on sick leave. 

The commission’s findings

The FWC considered section 789FD of the Act and in particular the meaning of bullying. The FWC found that the manager had engaged in bullying that was within the definition of the Act:

“The conduct revealed … was indicative of a workplace culture where unprofessional and unreasonable conduct and interactions had taken place and that such had created a risk to the health and safety of a number of the workers involved,” the FWC found.

The FWC also found that even though the manager had been relocated, her secondment and the need for the businesses to interact from time to time meant that there was a real risk that the manager and employees would continue to have contact with each other. This posed a further risk to the health and safety of the employees and so the employer should have taken further steps to prevent the bullying from recurring.

The FWC ordered that for a period of two years:

  • The parties not approach one another and not attend each other’s premises.
  • The employer implement anti-bullying policies, procedures and training including outlining to all employees its expectations about appropriate conduct and behaviour. 
  • The employer was also ordered to clarify its arrangements for reporting bullying.

The importance of policies and procedures
The FWC’s reasoning makes it clear that the employer’s lack of policies and procedures was a significant issue. An anti-bullying policy is an opportunity for the employer to send a strong message to all its employees, regardless of seniority, about expectations of appropriate behaviour and the ramifications for poor conduct. It also becomes a legal document in the event of any escalation of bullying issues. A good anti-bullying policy should also set out procedures for dealing with bullying complaints. Employers must ensure that they are closely followed.

Employers should also take meaningful action around bullying by:

  • Taking complaints seriously.
  • Properly investigating complaints.
  • Investigating without bias.
  • Applying policies consistently (especially when it comes to disciplinary action).
  • Determining what safety measures should be implemented.
  • Providing training to employees to identify what is and is not bullying. 
The order makes it clear that the FWC will be intolerant of employers who have failed to put in place policies and procedures aimed at preventing bullying. Employees also need to be educated in the requirements of the policies and procedures, and understand what constitutes bullying and the terrible effects that it can have on other staff members. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October


Group Bullying - A Complex Phenomenon

Jill McMahon - Monday, July 20, 2015
Mobbing: A Disturbing New Bullying Trend
Group Bullying: A Complex phenomenon

Since the late 1970s, workplace bullying has been on the radar, with an increase in attention from researchers and workplaces in terms of understanding and managing the behaviours. This broad attention has given rise to issues around the definition, but with some consensus on the key elements of what constitutes workplace bullying. 

In Australia, the Fair Work Act 2009 defines workplace bullying and captures the group element, defining it as a person or group of people repeatedly acting unreasonably towards another person or group, and with the behaviour creating a risk to health and safety.

While workplace bullying has been largely researched from the individual or organisational perspectives, minimal attention has been paid to the phenomenon of group bullying, which is surprising given some empirical findings on multiple-person bullying.

What the studies show

A review of empirical studies into workplace bullying in Austria, Germany, Hungary, Ireland, Italy, Norway, Spain and Sweden found that more than 50% of survey participants reported having been bullied by more than four people, and 15 to 25% reported having been bullied by between two and four people, which is disturbing evidence of group bullying. Yet, little is known of the how and why.

Key aspects of group bullying

Understanding group dynamics has always presented challenges for organisations, and most organisations rely on the effectiveness and health of their teams and groups. We know that social identity theory and social rules theory explain how informal processes control groups and teams of individuals, and can see the creation of ‘in-groups’ and ‘out-groups’ which can be breeding grounds for group bullying.  

These group processes can lead to the normalisation of a culture that allows and feeds bullying behaviour, or indeed passive by-standing so that individuals may stay connected with the ‘in-group.'

Power imbalance is one of the key components of workplace bullying. Informal power is an important aspect of group bullying, as an individual or individuals use it to either enlist others into the negative behaviours, or ensure that they keep quiet as passive by-standers.  

Neutralisation refers to the underlying justifications that either invite or excuse deviant behaviour, and can include five strategies – denial of responsibility, denial of injury, denial of the victim, appeal to higher loyalties and condemnation of the condemners.  
Research is currently being conducted to canvass whether and how these strategies are used by the perpetrators of workplace bullying to both enlist other participants, and justify their behaviours towards others.

Why is group bullying so hard to deal with?

What makes this phenomenon so difficult to contain is that the negative behaviours can present as being perpetrated by individuals, and not as a concentrated and organised campaign against a person or persons. Additionally, through this process, co-workers can be drawn into negative behaviours – not realising the potential harm of their actions on the target or targets. 

Support mechanisms or lack of support mechanisms in the workplace are associated with the escalation of workplace bullying. As an example, where co-workers are drawn into the negative behaviours and provide their support by either engaging in the behaviours or passively standing by and allowing them to happen, this support can escalate the workplace bullying and take it from individual bullying to group bullying. The spreading of rumours and gossip is a classic example of this occurring.

Support for the perpetrators can also come from the ‘wall of silence’ that can allow corruption and white collar crime in the workplace to continue unnoticed or even escalate. More research is needed on how workplace bullying contributes to the wall of silence.

Power networks can also see the perpetrator/s supported from various aspects of the organisation in terms of complaints not being dealt with appropriately because of relationships between decision-makers on complaints and the perpetrator/s and or targets.

The cost of bullying in australia

Safework Australia’s 2012 report into psychosocial issues affecting Australian workplaces revealed some disturbing statistics. It found that rates of bullying in Australian workplaces were significantly higher than the international rates, and that women in particular experienced higher rates of bullying over more prolonged periods. It was also estimated that Australian employers were forking out $693 million per annum due to job strain and depression, with connection to alleged bullying. 

Some bullying theories suggest that groups form because of safety in numbers – it’s okay for them to bully a person so long as someone else is doing it too. If the employer does nothing about it, then the problem simply becomes part of workplace culture. Others may join in, or stand by and watch as a way of protecting themselves because they fear being targeted if they don’t join in. Observers of bullying can themselves suffer from stress and a poor perception of the work environment.
What to do?
What is clear is that some organisations are very successful at keeping bullying at bay. Typically, they show concern for individual employees and implement and engage in regular anti-bullying strategies and preventative measures. We know that bullying can escalate over time which highlights the importance of early intervention.  Quite often intervention only occurs when the workplace is toxic and the bullying behaviours have escalated almost to the point of no return which is damaging to individuals, groups and the organisation.
NEED A SPECIALIST?  ENGAGE AN EXPERT
WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October