Stop Bullying Orders: How is the System Working?

Harriet Witchell - 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. 

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From Cyberspace to Head Space

Harriet Witchell - 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?

Harriet Witchell - 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
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Cut to the Quick

Harriet Witchell - 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
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Essential tips on moving forward…and leaving bullies behind

Harriet Witchell - 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.

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First Formal FWC Ruling Since Introduction of Bullying Rules

Harriet Witchell - 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
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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.

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Careless Whispers: Confidentiality and Office Gossip

Harriet Witchell - Tuesday, June 09, 2015
Confidentiality and Office Gossip
Careless Whispers: Confidentiality and Office Gossip

It’s human nature, really. We all love glimpses into the private lives of others, which is why the Kardashians are a household name. And our appetite for gossip can naturally extend to the workplace as well. We spend a lot of our lives in the company of our workmates after all, which naturally can make us very curious about their lives. But sometimes office gossip can be hurtful, and damaging not only to the person involved but to the company as well, especially if there has been a breach of confidentiality.

What is workplace gossip?

Workplace gossip is informal chatter about work colleagues and/or their acquaintances. For example, two employees discussing a rumour that the husband of another employee is having an extramarital affair.There are two big concerns with workplace gossip. The first is that an organisation’s workers typically spend much time in each other’s company. If an employee is the victim of gossip, they may no longer feel comfortable in the workplace, and various consequences may flow, including:

  • Loss of productivity.
  • Increased sick leave.
  • An allegation of workplace bullying.
  • Management time spent counselling employees.
  • Management time spent investigating incidents.
  • Low morale amongst staff.
  • An increase in inappropriate employee behaviours, especially in respect of office gossip.
  • The employee may resign.
  • Legal claim for termination of employment.

Almost all these consequences will likely result in some sort of financial loss to the organisation. 

The other big issue with workplace gossip is that it can compromise confidentiality - and confidentiality between workers, particularly about their employment conditions, is key to how effectively an organisation functions. For example:

  • Workers discussing how much another worker is getting paid can lead to disquiet amongst workers who think they should be paid as much, or more, than their colleague. 
  • Workers discussing a rumour that there will be forced redundancies when no redundancies are planned, or when the announcement is not ready to be made, can be enormously damaging. 
  • Workers discussing the possibility that another worker’s employment will be terminated is inappropriate for similar reasons. 
  • If a worker acts as a support person for another worker involved in a disciplinary matter, any discussion of the matter with other employees may compromise the investigation. 

When employees start speculating about operational matters, an atmosphere of mistrust is generated and the employer will be forced to spend time trying to make things right, rather than getting on with running the organisation.

Office gossip and termination of employment

An office gossip can have their employment terminated for various reasons, including breach of confidentiality, bullying, lying, or deliberately causing trouble. For example, in the case of Reedy v Global Cranes Pty Ltd, Fair Work Australia (FWA) found that there was a valid reason for terminating Mrs Reedy’s employment. Mrs Reedy had told a co-worker, Ms Tarrant, that their boss took illicit drugs and that he had been photographed with another woman. The co-worker was the fiancée of the boss and reported the gossip to him. Mrs Reedy’s employment was subsequently terminated and she made a claim for unfair dismissal against the company. FWA held that: “Mrs Reedy deliberately told Ms Tarrant about a rumour in a manner which was designed to cause trouble in the workplace, in particular between Ms Tarrant and Mr Vidaic, who was her fiancée and the Managing Director of Global Cranes. It is clear what a reference to another woman was in the context of the conversation. It was not an innocent reference.”

How to curb office gossip

Workplace gossip may start out innocently but when it escalates, the consequences can be serious. Wherever possible, employers need to keep a close ear to the ground to monitor what’s being discussed.There should be a clear policy about what is unacceptable employee conduct, including gossiping or spreading untrue or unconfirmed stories about a colleague. In addition, employees should receive training about the importance of confidentiality in the workplace, the harm that can result from gossiping, and how gossiping can morph into more serious issues such as bullying and harassment. Employers should strive to keep an open door to employees who feel that they have been victims of gossip. It is important that any complaints are treated seriously and investigated as thoroughly as other workplace incidents. The more that employees feel that complaints are taken seriously, the more likely that they will speak up before matters get out of hand. Workplace gossiping is an issue that if left unchecked, can have serious consequences for the employee concerned and the organisation’s bottom line. 


How to Stop Workplace Bullying in its Tracks

Harriet Witchell - Monday, May 18, 2015
How to Stop Workplace Bullying in its Tracks
How to Stop Workplace Bullying in its Tracks

Workplace bullying is an enormous problem, which can be very difficult to manage effectively. Not only does the victim experience high levels of stress, but bullying can cause a loss of productivity, and prevent staff from being able to work together. It can also result in more management time being spent dealing with bullying issues, increased costs due to investigations, and higher rates of sick leave, workers’ compensation claims and unfair dismissal claims.

How much of a problem is bullying?

The Commonwealth Government’s Guide to Bullying in the Workplace has estimated that 20 per cent of all workers’ compensation claims for psychological injury are the result of workplace bullying. Further, psychological injury claims are the most expensive type of claims. According to the guide, workplace bulling is the “repeated, unreasonable behaviour directed towards a person or group of persons at a workplace, which creates a risk to health and safety.” Single incidents of unreasonable behaviour are not considered bullying, although they can be a warning sign that the behaviour may escalate and lead to bullying.

The importance of workplace culture

Bullying usually comes into focus only after there has been a complaint. Steps are taken to investigate the complaint, and measures are put in place to resolve the issues. While it is important that incidents of bullying are investigated and appropriate action is taken, it’s much more effective to tackle the problem of bullying by trying to prevent it from happening in the first place. 

In workplaces where employees work well together, are treated respectfully and have open channels of communication, a bully will be less effective. In contrast, in a culture where workers feel suspicious and fearful, the conditions for workplace bullying are ideal. Often, it may be a manager doing the bullying through an “iron fist” approach, strictly controlling work and demeaning the victim. If this style of management has been accepted by the organisation, then the organisation has (perhaps unwittingly) accepted a culture of bullying. 

Effective bullying investigations

Because of the many legal requirements of a formal investigation, they tend to be formal processes and can even become adversarial if the complainant and the alleged bully have to sit down together in an attempt to resolve the matter. But if organisations are able to handle the matter a little more creatively, informal processes can be adopted. For example, an independent person may speak to both parties separately, giving both sides the opportunity to freely express their views. A code of conduct may be drafted, setting out acceptable and unacceptable behaviours, and both parties can agree to be bound by that code. Informal processes can often bring a speedy halt to bullying issues.

Other strategies to help prevent bullying

It is important that the organisation has an anti-bullying policy, which must be read and signed by every employee to indicate understanding and agreement to its terms. 

This is a foundation document which must:

  • Set out the definition of bullying.
  • Give examples of bullying behaviours.
  • Set out a grievance procedure.
  • Indicate that disciplinary action that can be taken against a perpetrator. 

This document will also become very important in the event of any grievance procedure or litigation arising out of a complaint of bullying. 

One of the most effective preventative measures is to promote a happy, healthy workplace in which employees are valued and respected. Managers should be regularly reminded that they are role models. Regular training of all employees on bullying issues also reminds everyone about what behaviour is acceptable, and sends a strong message that bullying will not be tolerated by the organisation. 

Preventative measures will never fully protect organisations and staff from bullying, but they can certainly help to reduce incidents of bullying, and show that the organisation is serious about stamping out bullying.

Bully or Boss? Finding the Line in Performance Management

Harriet Witchell - Tuesday, May 05, 2015
Performance management or bullying?
Performance Management or Bullying? Finding the Line

Being a manager is a tricky business. Not only are you responsible for your team meeting its targets and goals, but you must manage employees with a diverse range of personalities and abilities. It’s often difficult to walk the line between effective management, and risking claims of bullying by a disgruntled employee.

A case in point

This was the very situation under recent consideration by the Fair Work Commission. The applicant was a senior employee of a Commonwealth Government department. He alleged that his immediate manager had engaged in bullying in many ways, including by: 

  • Threatening to terminate the applicant’s employment.
  • Putting down the applicant and criticising him.
  • Treating the applicant like a slave.
  • Fabricating performance issues.
  • Humiliating the applicant by speaking to him in a condescending manner. 

The employer submitted that there were various issues with the applicant’s work performance, including lack of communication, inability to follow through on instructions, difficulties with managing work projects and meeting deadlines. The manager had held various one-on-one meetings with the applicant in an attempt to improve his performance. This resulted in the applicant complaining on two occasions that he was being bullied. The complaints were internally investigated and both investigations concluded that there was no evidence of bullying. Some time later, because the applicant’s performance had still not improved, a Performance Improvement Plan (PIP) was implemented by the manager. Still, the applicant’s performance barely improved for the duration of the PIP. The applicant alleged that there had been “malevolently motivated micromanagement of his performance”.

The Commission’s findings

The Fair Work Commission found that there was no evidence of bullying, noting that the employer had engaged in an “ordinary exercise of management prerogative” and the application was dismissed. The applicant appealed the matter. On appeal, the full bench of the Commission held that over a number of years, no attempts by the employer were successful in improving the applicant’s performance. There were meetings held with the applicant as well as mediation, all in an attempt to informally improve his performance. After that, the PIP was implemented, with little improvement. A range of supervisors had taken issue with the applicant’s performance. The Commission dismissed the appeal, finding that there was no evidence of workplace bullying. 

This case relied upon the anti-bullying provisions of the Fair Work Act. Section 789FD says that no bullying can exist where there is “reasonable management action carried out in a reasonable manner.”

So what is reasonable management action?
It then becomes a question of whether the employer’s conduct is “reasonable management action.” The Act defines bullying as unreasonable and systematic behaviour that creates a risk to the worker’s occupational health and safety. But the notion of reasonable management action is not defined by the legislation. This case makes it clear, though, that management can take steps to improve an employee’s performance, regardless of how negatively those steps are viewed by the employee. Meetings, mediations and more formal tools that document the employee’s progress (such as the PIP) are all acceptable. However, it is essential that the employer closely follows their own policies and procedures so that their management of the employee can be viewed as objective and reasonable in all the circumstances.
The need for documentation

It is also clear that there needs to be a range of supporting documentation from the outset of the employment relationship. For example, the employer should outline all duties, goals and objectives from the start, along with expectations of how the job is to be performed and how success will be measured. Employees should have regular feedback sessions with management. The employer should also have policies surrounding bullying and how performance issues will be managed, and a clear employee grievance process.

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