Lessons for employers about bullying dismissals

Harriet Witchell - Tuesday, August 27, 2013

A recent case determined by the Fair Work Commission provides some important lessons for employers about bullying dismissals. 

In Harris v Workpac Pty Ltd [2013] FWC 4111 the Commission found in favour of the applicant and determined that her dismissal for gross misconduct for bullying a co-worker was unfair.

Mrs Harris was dismissed on 20 December 2012 with five weeks pay for gross misconduct for bullying a co-worker.  She was dismissed after a co worker resigned and made complaints of persistent bullying and humiliation against Mrs Harris during an exit interview. 

The complaints were investigated although no evidence of the investigation or the decision making process was provided to the Commission. Similarly no evidence was provided by the co worker to support her claims of bullying, aside from a statement containing general comments of how the applicant made her feel.

Mrs Harris was notified by email of the allegations just a couple of hours before being interviewed and despite disputing the allegations, she was dismissed the same day for gross misconduct.

Significantly, despite the employer conducting a quick investigation and finding that the behaviour complained of had occurred over a prolonged period of time, the employer failed to provide any evidence about the investigation or their reasoning for dismissing Mrs Harris.

The complainant’s allegations were vague and disputed and the Commissioner cited a lack of evidence from either party as a barrier to his decision making.

The complainant stated she previously complained at the time of the incidents but the employer did not produce evidence that any action had been taken in relation to these earlier complaints, nor any evidence that the complaints were investigated following the resignation of the co worker.

The Commissioner stated:
"while the Commissioner does not and should not endorse the view that "anything goes" at the workplace, it is also important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with vigour and related to incidents which occurred some time ago. In my view the Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct. The workplace comprises of persons of different ages, workplace experience and personalities not divine angels employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is "guilty of bullying" and "gross misconduct".

The Commission also criticised the employer for failing to take into account that the majority of incidents complained about occurred when Mrs Harris’ husband was in a coma and subsequently died.  The Commission stated that this was a period of recognised stress and should have been considered in the determination of the dismissal.

Lessons for employers to take away from this case include:
  • The importance of line managers responding to complaints at the time they occur;
  • The need for the complainant to particularise the complaints - general statements going only to the impact of the behaviour are insufficient;
  • Do not assume that the level of harm is directly proportionate to the poor behaviour. 
  • The need for employers to document the investigation AND the decision making process related to disciplinary action;
  • Take into account circumstances that may mitigate against the behaviour.

 

For guidance on responding to complaints WISE Workplace has prepared a free e-book:

Stepping out the process – Responding to workplace bullying

Harriet Witchell - Tuesday, August 13, 2013

Does your team know the difference between workplace bullying and reasonable management action?

Do your policies and procedures reflect the new draft Code of Practice for Preventing and Responding to Workplace Bullying?


When an employee makes a complaint of workplace bullying, will your staff know how to respond, come January 2014?

Ensure you are not on the back foot, trying to pick up the pieces, when the Fair Work Commission steps in to protect one of your employees from ongoing bullying.

There many ways of breaking down information into bite-sized, memorable pieces, such as “top 3 tips for….”, “five ways to….”

The draft Code of Practice for Preventing and Responding to Workplace Bullying has nine principles of responding, three levels of response and 10 steps in the investigative process to investigate workplace bullying:

1.  Receiving the complaint
2.  Interviewing the complainant/target
3.  Plan your response – notifications/plan/TOR
4.  Interview witnesses
5.  Collect other evidence
6.  Draft allegations to the respondent
7.  Interview the respondent
8.  Evaluate the evidence
9.  Make the decision on fact
10. Report the findings

WISE has produced an easy-to-read, desktop reference, to help you respond to workplace bullying.

From the award-winning author, Harriet Stacey, this FREE eBook draws on the key points of the draft Code of Practice, covers the 10 steps of the investigation process and provides a SAMPLE REPORT for workplace bullying investigations.

Fraud and Corruption in the News

Harriet Witchell - Tuesday, August 06, 2013

 

Fraud and corruption were top of mind last week, and not just because the NSW’s Independent Commission Against Corruption handed down its findings in the Eddie Obeid investigation, while Greg Pearce, former NSW state Minister for the Illawarra, was stood down for corruption allegations.

At the same time, I joined some of the country’s top law enforcement and anti-corruption investigators at the Third Annual National Public Sector Fraud and Corruption Congress (hosted by Intrepid Minds) in Melbourne.

At the congress, the nation’s leaders in this field discussed recent cases of fraud, the challenges of public sector procurement, managing errant behaviour at a time of budget constraints and the new opportunities presented by social media.

One thing that stood out for me at the congress was the need for organisations to be alert to the early warning signs of corruption; their capacity to investigate even minor breaches of policy in a holistic fashion, and to ensure minor misdemeanours don't develop into major corruption networks.

An increasing number of professional standards officers are charged with employee misconduct in addition to corruption. The fact that Greg Rolph, APM, director of the NSW Police Professional Standards Command, observed at the conference, that he spends more time dealing with poor behaviour between police officers than cases of corrupt conduct, indicates a swing in this field.

Constant vigilance and action are required to manage fraud and corruption in our public service. Organisations can reduce their risk with these simple measures:

  • Identify those people or positions in the organisation with the opportunity/access to funds, banking and invoicing.
  • Review anti-fraud measures and accountability procedures. Ensure adequate procedures are in place.
  • Conduct audits to ensure procedures are followed throughout the organisation and regularly ask questions.
  • Educate staff and managers about appropriate and inappropriate spending.
  • When you find discrepancy, act. Nothing sends a clearer message about appropriate conduct than a case example.

Investigation ‘bungled’ in sexual harassment case

Harriet Witchell - Thursday, August 01, 2013

 

By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

Background
The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

* McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

WISE Resources

How credible is this witness? The only way to know …

Harriet Witchell - Tuesday, July 23, 2013

As investigators we are often asked to assess the credibility of a witness: it’s the client question I most dislike.

As an investigator with a background in psychology and witness memory, I am far more interested in the reliability of their evidence. It is true, for example, that the drinking habits of a witness may have a bearing on their reliability in some circumstances. The frequency of their contact with police may also influence them in one direction or another.

But the question is hardly ever as simple as it seems. It’s not as if investigators have some special power to determine the reliability of a witness. The only way to come as close to possible to finding the answer is to conduct a thorough investigation.

An investigator needs to assess carefully the possible influences at work on a witness, including social and psychological factors. And there are potentially quite a few of them.

A recent discussion on LinkedIn produced this excellent list of issues to consider when determining the credibility of a witness. I thought it was worthy of sharing in this blog post.

The credibility of a witness is determined in part by:

  • the internal consistency of her/his testimony, and possible self-contradiction, 
  • whether it is true, 
  • the history/reputation/character of the witness, 
  • his/her motivation to lie, 
  • any relation of the witness to the respondent or defendant, 
  • any other conflicts of interest, 
  • whether the person is testifying without duress, 
  • whether the person makes statements against self-interest, 
  • falsifiability of statements, 
  • whether other witness testimony supports the witness's testimony, 
  • the witness's proximity to the alleged event in time and place, 
  • any cognitive impairments,
  • the language ability of the witness, 
  • correct orientation as to time/place/circumstance, 
  • differences and similarities to previous testimony, 
  • rote or repeated nature of testimony to other witness's testimony (which may speak to preparation or advice or coercion by a third party), 
  • is the level of detail provided appropriate to the nature of the circumstances,
  • corroboration of witness testimony,
  • biased statements by the witness.
(Marc Brenman – LinkedIn comments 10 July 2013, www.linkedin.com/pub/marc-brenman/2/93b/98/)

The point is this: assessing witness credibility involves an investigation, and the analysis of a lot of information - and that takes time and effort.

Employers need to understand police agenda in criminal cases

Harriet Witchell - Wednesday, July 17, 2013

A basic understanding of criminal law – especially the powers and responsibilities of the police - can make for better decision-making and better outcomes for employers in criminal cases of workplace misconduct.

WISE Workplace has handled a few cases recently where the employer or HR manager either hasn’t understood the role of the police in an investigation, and/or police officers haven’t adequately explained their decision to investigate or not.

The point is that police usually have a very different agenda to that of the employer, so what might be a serious case for an employer may be regarded as trivial by police.

For example, theft is a serious offence, of course, but if you believe that an employee has been stealing cash from your business, and you report it to the police, it’s very unlikely they will conduct an investigation. That’s unless a serious amount of money is involved.

The employer will need to undertake an investigation to establish that the misconduct has occurred and present the evidence to the police, who will then decide whether to interview and charge the alleged offender.

Here are three actual cases where lack of awareness of police responsibilities and limitations caused employers to delay decisions or undertake investigations that were best undertaken by police:

Case one: police told an employer managing a case of possible breach of professional boundaries that they would undertake a criminal investigation of the alleged misconduct – even though there was no victim willing to make a complaint and no evidence that a criminal offence had occurred.

Case two: an employee who alleged that a colleague raped them at work was led to believe that the police were not the lead agency investigating the complaint - and that the employer had engaged a private investigator. Clearly, the police should have been involved from the outset because of the seriousness of this allegation.

Case three: police misled managers handling allegations of sexual offences to suggest that the complaints were not serious and 'only amount to grooming' - omitting to advise the employer that grooming is in fact a serious criminal offence.

So sometimes the police mislead employers because they are pursuing a different agenda. In some cases they may overstate their powers; while in others they underplay their responsibilities.

In all cases, a basic understanding of the powers and responsibilities of the police would have helped employers manage their internal procedures better.

If you believe a matter to be criminal, you should report it to the police. But the police will not necessarily take action unless the victim makes a complaint to them directly. You will need to take action.

If the police are investigating, you should allow them to conduct the interviews first - but don't expect them to investigate the whole problem - they will focus exclusively on the criminal conduct. This probably won’t provide all the answers to workplace breaches or workers compensation issues.

If your organisation experiences recurring issues that are reported to the police, then it may be worth developing a relationship with relevant local police officials to improve communication and better understand how to respond effectively.


Investigating bullying: six common mistakes interviewers make

Harriet Witchell - Wednesday, July 03, 2013

The Fair Work Amendment Bill 2013 has just passed in the Senate, and come January 2014 HR managers will have to consider more carefully how their organisation responds to complaints of bullying.

The primary source of information in any complaint is the people involved; the complainant, the accused and co-workers who may have witnessed the events or tried to manage them.  

Developing effective skills on how to ask the right questions for an investigative setting is critical to the accurate determination of bullying complaints.

Interviews conducted by HR managers are often too short to really get to the issues at hand. Managers who have had prior dealings with the complainants often assume they know the events that are involved, but in reality they are just another witness and should be considered just as critically as other witness statements.

An investigative interview is not the same as interviewing for selection or recruitment; critical differences can often trip up even experienced HR professionals.

Planning your investigation and preparing for every interview is critical to success. Too much preparation, however, and you run the risk of conducting an overly-controlled interview, which doesn’t allow for fluid and interactive conversation.

Here are six common pitfalls that HR professionals should avoid to ensure the integrity of the interview and, potentially, the whole investigation:

1. Leading an interviewee to give specific answers where a predetermined decision has already been made, commonly called “confirmation bias”

  • For example, a senior manager conducts their own “quick” investigation after an incident, and says: “You see, what we think really happened is …don’t you agree?” It’s more common than you might think!
2. Using personal characteristics or stereotypes to assess credibility, rather than assessing the reliability of an interviewee’s evidence
  • You’re told the person you’re about to interview is a “bit dodgy”. They’re red-eyed, shifting in their seat and sniffing frequently. You interpret that as a drug habit - and don’t attach much weight to their account – only to find they suffer acute hay-fever and witnessed the whole incident!
3. Failing to ask for specific details of an event:
  • “They yelled and swore at me  in front of everyone in the meeting!” If you don’t ask for specific words, they probably won’t tell you exactly what was said or what happened in detail. What was it that made the person feel intimidated?
4. Asking for irrelevant information
  • It can be easy to let an interview wander off topic and/or confuse an interviewee with irrelevant history between two parties. Sorting out the wheat from the chaff can be challenging, but if you want the evidence sometimes you have to listen to the chaff and sort it out later.
5. Failing to ask questions about inconsistencies in accounts;
  • Be alert to differences within an interviewee’s account. Questioning them about these may reveal critical information. Also note inconsistencies in accounts between interviewees, and use the opportunity of subsequent interviews to clarify.
6. Using affirming comments and gestures during an interview which can be interpreted as bias on the part of the investigator
  • “Thanks for confirming that. That’s great. I’m pleased we can now confirm what happened.” Such comments may persuade an interviewee that you believe their version of events causing issues later if no apparent action is taken.


Making administrative decisions stick: procedural fairness at work

Harriet Witchell - Wednesday, June 26, 2013

 

A starting point for any court of law when assessing the legitimacy of an administrative decision is fairness – procedural fairness

Now that Safe Work Australia has released the draft model code for bullying in the workplace, employers need to ensure that procedural fairness is at the heart of their response to bullying issues.

A fundamental concept of law is that whenever you make an administrative decision about an employee you need to ensure that the process was procedurally fair.

This applies uniformly to managing misconduct and performance management. Ensuring that actions are taken as a result of ‘reasonable management action’ involves abiding by these principles and sticking to your policies and procedures.

The case of Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police NSWIRComm 51 is a classic example of how not to conduct a workplace investigation.

The NSW Industrial Relations Commission found that the investigation process was so infected by procedural deficiencies as to contaminate the process.

The three key principals of procedural fairness are:
  • The right to be heard
  • The right to an unbiased decision maker
  • The right to have the decision based on evidence
Achieving an unbiased decision can be difficult, the decision makers must not be biased, that is:
  • Actually
  • Potentially or,
  • Perceived as being

It is not enough to get in a second or third opinion to form a committee of decision makers. Bias is assessed using the principle of one biased all biased, rendering any such decisions as biased as if they were made alone. 

When assessing whether there is perceived or potential bias, the law uses the reasonable person test to make the assessment: would a reasonable person in full possession of the same information think there was a potential or perceive a bias?

Flaws found by the Industrial Relations Commission (NSWIRComm 51 ) included:
  • the relevant decision-maker admitted that she: (a) had a pre-determined view of the outcome of the investigation prior to its completion and (b) took irrelevant matters into consideration in making her decision,
  • the initial investigator had been involved in one of the alleged incidents and had previous disagreements with the employee under investigation,
  • two witnesses present at the alleged incidents were not interviewed,
  • there were unreasonable delays in the process,
  • the employee under investigation was not given details of the allegations against him until he was interviewed many months after the investigation process commenced.
Putting this into practice in workplace investigations or in performance management practices:
  • The right to be heard means making sure the employee has enough information to know what they have done wrong, and provide them with an opportunity to be interviewed and provide their side of events.
  • Ensuring an unbiased decision maker means removing decision makers, managers and investigators who have had prior dealings with the employee that could affect their view of the current case. Anyone with a conflict of interest in determining the case without bias should be distanced from the proceedings.
  • The right to have the decision based on evidence entails collecting all the available evidence within reason, and assessing that evidence without bias or favour. Knowing how to weight the reliability of different forms of evidence is critical in drawing the correct conclusions in law.

Safe Work Australia Draft Code of Practice - Preventing and Responding to Workplace Bullying

Procedural Fairness: a practical guide for workplace investigators 

Five top tips on investigating workplace bullying

Harriet Witchell - Wednesday, June 19, 2013

New federal legislation passed this month means employers will need to pick up their game when managing complaints of workplace bullying.

Prevention is the best place to start. However, putting in place suitably qualified staff capable of conducting robust investigations and managing difficult cases is an essential strategy for any employer.

Previously, the investigation of workplace bullying involved managing the challenges of workers taking ‘sick leave’ and lodging a compensation claim for the stress caused by bullying at work.

Employers may also have had to navigate issues when HR became the subject of complaint when they assisted managers with performance management.

From 2014, however, HR policies and procedures will come under scrutiny directly by the Fair Work Commission, and staff will potentially have to handle prevention orders from the FWC.

This kind of oversight is not new to all business, but many will find this unfamiliar territory stressful. It will provide complainants with an extra level of control.

For the past 12 years, WISE Workplace has helped companies and government agencies manage investigations into bullying. Here are our top five tips for the successful management of these often difficult cases:

  1. Ensure procedural fairness is afforded to both complainant and respondent. This means allowing both parties to have their say.  More than just a procedural step, the key to procedural fairness is to ensure that this is done with an open mind and that key decisions are not made until ALL parties have been spoken to and supporting evidence gathered.
  2. Do not make assumptions based on your prior knowledge of parties involved. There are just as many frivolous, ill-conceived complaints as there are substantive ones - and some of the biggest bullies sit high up in an organisation.
  3. Do not allow staff to make ‘confidential’ complaints that may be about bullying. You have a legal responsibility to ensure that bullying behaviour does not go unchecked. If you receive complaints or whinges of behaviour that you consider could be bullying you will need to start an investigation regardless of the wishes of the complainant.
  4. Resist the temptation to perceive complainants as ‘difficult’ or disingenuous because they use or threaten external avenues for complaints. Lodging a workers compensation claim if you are harmed, lodging a complaint with the Fair Work Commission, a human rights commission, ombudsman or solicitor are all legitimate avenues for a victim of bullying. In extreme cases, victims may also legitimately report actions to the police. These things make the cases complex not implausible. 
  5. Make sure you understand the concept of the ‘reasonable person test’ when it comes to assessing management action and behaviour that may have a risk to health and safety.

Safe Work Australia has released the Draft Code of Practice - Preventing and Responding to Workplace Bullying for public consultation. Responses are invited until 15 July, 2013.

WISE Workplace offers training to HR professionals and managers on how to respond to workplace bullying, conducting investigations and making findings of fact. For more information you can call us on 1300 580 685.



Fair Work Amendments: What’s new on bullying in the workplace

Harriet Witchell - Wednesday, May 29, 2013

 

Joanne was keen to take up a new position in an office she had previously worked in. She looked forward to working with former colleagues.

But far from being greeted with the bonhomie and friendship she had been familiar with, she was met with the cold shoulder. Excluded from morning teas and team lunches, no one wanted to cooperate with her.

Earlier,  she had been part of the management team; now she was in a new role created to support some of the more complex tasks of her colleagues – a role they resented. Within days of returning to work, Joanne was in tears, feeling excluded and isolated by the treatment of colleagues.

The distress Joanne felt soon resulted in her having to take time off and work from home. Before long, she was showing signs of depression.

Joanne made repeated reports of her distress to her managers. While they were able to see the effects of the bullying, they didn’t feel that they were able to intervene because they regarded the issues as “petty office politics”. They saw the lunch time gatherings as being events “outside work” and, as such, they were occasions over which they had no control.

In another case investigated by WISE Workplace, a personal assistant experienced high levels of stress - and ultimately depression - following micro-management of her daily tasks. Her manager became increasingly impatient with her over timelines and project management.

The micro-management and impatience displayed by her manager led to increased feelings of incompetence and worthlessness that quickly lead to anxiety and lack of confidence in the work she had previously undertaken without worry.  

The manager’s reaction was to commence performance management which instantly had a further detrimental effect on the PA’s performance and ability to do her job.  

Under the proposed changes to the Fair Work Act 2013 (Fair Work Amendment Bill 2013) that is expected to be rolled out in July 2013, both cases present a challenge for businesses.

Both employees will be eligible to submit a claim to Fair Work Commission (FWC) to stop the bullying and it will be the Commissions job to determine if bullying has occurred and whether it is appropriate for them to take action to prevent the bullying from continuing.

The amendment to the Fair Work Act would give the FWC the jurisdiction to deal with bullying complaints including:

  • Defining bullying in terms of repeated unreasonable behaviour by an individual or group of individuals towards a worker or group of workers where the behaviour creates a risk to health and safety;
  • Clarifying that bullying does not include ‘reasonable management action carried out in a reasonable manner’;
  • Enabling a worker to apply for an order if the worker reasonably believes that he or she has been bullied at work;
  • Enabling the FWC to make any order it considers appropriate (other than an order for payment of a pecuniary amount) to prevent the bullying;
  • Requiring the FWC when considering the terms of an order to take into account outcomes from any investigation conducted by the employer or other body, any relevant procedure available to the worker (eg. a procedure within a company policy which deals with bullying), and any outcomes arising from a relevant procedure; and
  • Requiring the FWC to start to deal with an application within 14 days of the application being made.

People have different levels of resilience to bullying. One of the key variables is the amount of control a victim has over the situation.

For example, when work is scarce, or employment options limited - or the dependence of an individual on their wages is high - workers feel that they have less control and fewer choices over how to respond in situations where they feel they are being bullied.

In the cases illustrated above, there has been a discernible effect on the health and safety of the employees.

Whilst there is no discussion yet as to how the FWC will assess whether the wellness of a claimant is directly connected to the behaviour they experienced, it is sure to be different from the workers compensation process.

In the latter process, the employee has to demonstrate that the ill health was caused by the bullying – any evidence of prior mental health issues is often enough for the insurer to escape liability.

The focus of the FWC will be on whether the behaviour experienced was likely to lead to ill health of the complainant. The degree of ill health experienced will vary from individual to individual, with some being more resilient than others.

The question under consideration will be ‘reasonableness’.

In the case of the PA, the amendments to the Act expressly exclude ‘reasonable management action.’ Formal performance management is often a legitimate process that the complainant incorrectly interprets as bullying, but at times can be part of an overall pattern of bullying. In addition, at times complaints are made to deflect from an employee’s poor performance.  

Employers will be greatly assisted if they conduct a legitimate independent investigation processes to determine the reasonableness of their manager’s actions.  Basic management training, focusing on coaching and performance management communications, are going to become an essential element of supervisor training along with good record keeping.

In Joanne’s case, the inability of managers to understand what was a work related event was a barrier to her having her complaint handled internally.  The boundaries over when work starts and when it finishes have been blurred with the advent of social media but there is considerable case law now that establishes a few facts to enable managers to determine if the bullying conduct is a work-related matter or not.

  1. Is the primary relationship between the parties work related?
  2. Has any of the conduct occurred in the course of work, or during work hours, while one or more of the parties is at work? 
  3. If the behaviour is outside of normal work hours has it occurred at a place or event primarily attended for, or by, employees?
  4. If the behaviour has been undertaken through digital means would a reasonable person view the communication as originating due to a work issue or relationship?

If the answer to any of these questions is “yes”, then the employer needs to take some action in respect of the bullying.

The essential elements that employers need to consider when reviewing a complaint of bullying is:

Has the conduct complained about occurred whilst at work?

See comments above on the stretching of these boundaries in recent years.

Is the conduct complained about unreasonable?  
That is, would a reasonable person consider that under the circumstances the behaviour would be likely to cause an injury to the health and safety of the other person?

Is the behaviour repeated?
The behaviour does not need to be undertaken by one individual but can be carried out by many individuals, but generally against one person (the target).

Has the behaviour created a risk to health and safety?
There only needs to be a risk, not actual harm, to health and safety.

Is the behaviour reasonable management action?

Again, the test of “reasonable” is would a reasonable person knowing the full circumstances consider the behaviour to be reasonable?

If, as an employer, you believe you have a complaint that might be considered bullying the best option is to undertake an investigation, document the actions taken and the reasons why. These actions will need to be taken in conjunction with any risk management action required to ensure the health and safety of the staff concerned.

Remember,  an effective investigation is procedurally fair, unbiased and conducted within a reasonable time frame.

Finally,  what you do as an employer in response to a bullying complaint will be open to review and will come under more scrutiny than ever with the advent of the amendments to the Fair Work Act.

Some simple rules:

  • If you don’t have the skills or experience to deal with a bullying complaint - call an expert.
  • If you don’t know how to conduct a fair and professional investigation - call an expert.
  • If your answer to Q1 & 2 is “unsure” – call an expert!