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Workplace Bullying and the Meaning of "At Work"

Harriet Stacey - Tuesday, January 27, 2015
Workplace Bullying and the Meaning of "At Work"

The full bench of the Fair Work Commission (FWC) recently conducted a detailed analysis of the phrase ‘at work’ relevant to workplace bullying. The findings provide an insight into the possible meanings of this deceptively simple term. And with the advent of social media as a means of transmitting communications, defining what occurs 'at work' can certainly be a challenging task. 

Case in point 

This recent matter of Bowker & Ors v DP World [2014] FW CFB 9227 saw the full bench of the FWC closely examine what can be considered to have occurred ‘at work’. In this case, three workers were seeking anti-bullying orders against their employer.  The respondents concurrently sought to strike out a number of alleged bullying claims, arguing that they had not occurred ‘at work’. 

Substantial connection? 

In opposing any strike-out, the workers argued that in accordance with s789FD of the Fair Work Act, the bullying behaviour could be found to have occurred at work if a ‘substantial connection to work’ was established. However, President Iain Ross and his colleagues on the FWC rejected this position, stating that there was ‘no persuasive argument’ to expand the reach of s789FD in this way. The bench made it clear that a limiting rather than broad interpretation of the section was in order. 

Performance and authorised activities 

To provide clarity around the concept of bullying ‘at work’ within 789FD of the Act, the FWC stated that the words encompassed "both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)." In this way, the actual work functions and/or authorised activities were considered a key starting point for the application of section 789FD. 

Time and place of cyber bullying

Part of the alleged behaviour involved offensive Facebook comments that had been made about the workers. It was argued by the respondent that these had not been posted at work – and thus fell outside of the bullying provisions of the Act. Rejecting this approach, the full bench stated that it is not a question of when the offending comments are posted on social media. For the purpose of proving workplace bullying, the mischief will be seen to occur at any time that the worker accesses the comments while the worker is ‘at work’.   

Lessons learned
This case reflects the challenges inherent in applying the idea of ‘at work’ to modern cases of workplace bullying. The focus of the FWC full bench on the time and place where the bullying was experienced – rather than the time and place of posting – sheds useful light upon bullying ‘at work’ when social media is involved. And in rejecting ‘substantial connection’ as a means of determining if the alleged mischief occurred at work, the bench made clear that any interpretation of s789FD should be limited to the clear purpose of the provision within the Act.

5 Steps to Effective Management of Bullying Complaints

Harriet Stacey - Tuesday, January 20, 2015
5 Steps to Effective Management of Bullying Complaints

How you choose to manage a bullying complaint will have a significant effect upon the outcome. It can certainly be difficult to sort through and resolve the issues. Our 5 steps to effective management of bullying complaints will help you to navigate the path. 

  1. Gather the Basics. Before creating a plan of action, gather the core information. Ascertain from HR who the key parties are as reported. These might include the complainant, the subject of the complaint, and alleged victim (if the complainant is in fact a witness). Note the basic elements of the allegation, but be careful not to get too involved in the details at this point. Part of taking reasonable management action means holding off from listening to just one person, or making any early judgments.
  2. Make An Investigation Plan. Armed with basic information about the bullying complaint, you can now move forward to the development of an investigation plan. Because you know the central people involved, an outline of the complaint, and the nature and size of your organisation, you are well equipped to make an effective plan. Decide if you have the necessary investigative skills within the workplace, or if a professional workplace investigator is necessary. Whether internal or external, your investigator will benefit from a well-structured plan – and in fact might help you to create one. Plans can include a timeframe, witness names and positions, essential and inessential questions, and / or preferred interview methods. A good plan can greatly enhance the quality of the investigation.
  3. Close Off Gossip. Hopefully, the bullying issue remains contained. Yet for better or worse, knowledge of workplace complaints can often spread quickly. Perhaps the hardest step in reality, a professional effort is needed to minimise misinformation on the work floor. This does not mean placing a ‘zero tolerance’ on workplace discussion around the complaint – this is generally impractical. What may be required where gossip is flowing fast is a short statement from the employer. This could simply indicate that an investigation is underway, and that respect and discretion are required across the workplace.
  4. Investigate Impartially. Whether internal or external, any investigative process must follow the principles of procedural fairness. For example, before or during the investigation you may feel strongly inclined to believe one party or another. It is so important to resist jumping to any conclusions, particularly until the process is fully complete. If any party believes that bias has been demonstrated, then a finding of a breach of procedural fairness is a distinct possibility. Keep questions calm, on point and directed towards relevant facts only.
  5. Monitor Staff Wellness. Before, during and after your management of a bullying complaint there are essential issues our health and safety that must be kept in mind. Stress might be quite high among all involved, and you may need to give consideration to granting leave for certain staff. Some physical movement within the work space might also be recommended to reduce the potential for ongoing difficulties. 

Employing reasonable management action while handling a bullying complaint will undoubtedly ensure the fairest outcome for all. Having our 5 steps at hand will help you to create a way forward that promotes both even-handedness and a quality resolution. 

Want more information on how to respond to workplace bullying? Want to know the key definitions and legal principles? Get advice based on extensive investigations experience? Understand the key steps in conducting an effective investigation, including a template report of findings based on an actual case?   Download our e-book on How to Respond to Workplace Bullying now!

Getting It Out There: The Value of Good Debriefing

Harriet Stacey - Tuesday, January 13, 2015
Getting It Out There: The Value of Good Debriefing

Moments of conflict can and do arise in the workplace. When such problems arise, employers have an opportunity to involve staff in an organised debrief of the situation. Doing so can not only provide people with a chance to air their thoughts and feelings; employers might in fact be able to avoid future grievances and/ or the need for mediation around contested issues. 

When might a debrief be advisable? 

If a number of staff members have been experiencing conflict around a problematic work event, this might be a perfect opportunity to ‘get it all out there’ in the form of a debriefing session. A sale or presentation might have gone terribly wrong, and accusations are now beginning to fly. By designing an appropriate debrief meeting, the core issues can be aired and discussed, with mutual learnings hopefully being gleaned. An effective debriefing can in this way reduce conflict, costs, and future mistakes. 

Are there exceptions? 

In contrast, an example of a conflict scenario that is not particularly suited to the debriefing model is the one-on-one conflict. When only two or three colleagues are involved in a conflict, it might be more appropriate to deal with this at a supervisory or HR level. Particularly where there are differing power levels – such as between a manager and a direct report – a smaller and more contained method of conflict resolution might be indicated. 

How should a debriefing be organised? 

The key theme for any effective debrief is transparency. Prior to the meeting, give people an invitation complete with a short and honest appraisal of the situation. In the scenario of conflict arising from a failed endeavour, indicate that you’d really like to hear people’s views about the process and the outcome. Above all, stress that this is a no-hierarchy discussion – input will be moderated to ensure that more senior and/ or assertive people cannot monopolise the discussion. Ensure that the venue is quiet and comfortable, and that nobody who was affected has been left out. 

What should take place in the debrief?
 At the start, thank everyone for coming and reiterate that you’re keen to hear their experiences and ideas about the contentious event. Emphasise that there are no ‘wrong’ comments and complete honesty is preferred. Give a brief outline of the issue and resulting conflict, such as: “There’s a lot that went wrong with the Smith account last month. I get the feeling there are conflicting views around who’s to blame and what exactly went wrong. It would be great if everyone could let me know what they think caused the problems – and what we could change for next time.”  As noted above, it is important to ensure even contribution. While emotion is inevitable, do remind people that personal attacks are not okay. An effective debriefing should be carefully designed and run, to ensure that only the most positive outcomes are achieved. 

What happens next? 

At the end of an effective debrief, summarise the group’s findings and any agreed actions. Read back, and then make any corrections if you have misunderstood or misheard particular points. Thank all participants for their contributions and their honesty. Give a timeframe for any undertakings that you have made – and stick to it. If the session has been handled professionally and transparently, then festering issues regarding blame, disappointment and anger have hopefully been dealt with in a productive way. 

Considering the costs of grievance management and workplace mediations, a well-run debrief session has the potential to not only save friendships, well-being and morale – it can also reduce expensive processes of conflict resolution. 

Harriet Stacey 28 Jan 2014

Following the recent anti-bullying amendment to the Fair Work Act, WISE CEO Harriet Stacey talks about the importance for employers to be proactive and effective in how they deal with workplace bullying.