How Silence and Censorship Can Enable Workplace Corruption

Jill McMahon - Wednesday, June 08, 2016
How Silence and Censorship Can Enable Workplace Corruption

While workplace corruption can take many forms, it can also exist in silence and censorship. A corrupt group of workers may keep silent about their activities, or they may impose silence or censorship on others to ensure that their conduct is not reported. 

This makes corruption very difficult to detect, and it also leads to other issues such as workplace bullying and worker safety. 

How does it happen?

Workplace corruption can be very effective when perpetrated by a group of workers. Once a group is operating within a workplace, they can cover up their own activities and insist on the silence of others. This is often closely linked to bullying.

The activity may be concealed by the attitude ‘this is how we do things around here’.

Employees may be pulled into a web of corruption because the behaviour is seen as normal, fear of bullying or the desire to be accepted by the corrupt group. If left unchecked, it can be a cycle that becomes entrenched. 

Why does it happen?

In addition to the pressures that can be applied by a corrupt group, there may be other issues at play when an employee is silenced or censored, and they may occur well before the corruption becomes apparent. 

Organisations naturally depend on employee input to improve services and efficiency. But sometimes employees don’t feel that they can speak up. 

There may be a range of contributing factors to this, including fear that:

  • Any suggestions for change will be viewed as a personal criticism of the manager or boss.
  • Any suggestions for change must fully solve the problem and strong evidence of this is needed before the employee has the right to speak up.
  • Any suggestion will be viewed as insubordination or embarrassing to the boss or manager.
  • There may be retribution or negative career consequences for speaking out. 

According to an article in the US Journal of Organisational Behaviour, there is also evidence that reluctance by employees to speak out may result in stress and depression, poor job satisfaction and lowered commitment to the job and organisation.

From here, it’s a slippery slope to corruption. 

The spiral into corruption

Just think. An employee, Dave, notices that five colleagues take petty cash on a daily basis to buy their lunch. It doesn’t appear to be sanctioned by the company. As the colleagues are good mates with the manager, Dave is concerned that telling the manager would create trouble for him. Dave worries that going to the manager’s manager would be seen as insubordinate, and in any event, he doesn’t have a bulletproof suggestion for how to fix the problem. He thinks the company is losing around $300 per week in petty cash.

As a result of his concerns, Dave chooses to say nothing and becomes increasingly stressed that if the employees get caught, he’ll be blamed for not speaking up. He’s also scared that he will be bullied as he’s seen this happen to another worker. Dave keeps quiet and by his silence, acquiesces in the corruption. 

How to stop it from happening

In our previous articles on corruption, we have canvassed a number of ways to stop the practice from spiralling out of control. 

More: Corruption and Deviant Behaviour in the Public Sector.

Building stronger relationships with employees can also go a long way towards keeping things in check.

Managers and supervisors can: 

  • Encourage employees to speak up when they see something that can be changed.
  • Reward suggestions for change.
  • Talk honestly to employees about the desire to have their input and how those strategies might be implemented.
  • Tell employees that they want to know what they observe and keep in touch with employees about the progress of their suggestions for change. 

Silence and censorship of employees as a means to cover-up corruption is a well-used strategy that means that organisational corruption remains difficult to detect. But organisations that adopt a “grassroots” approach by encouraging employees to participate in organisational improvements may find that they have developed an effective means of preventing and detecting corruption. 

WISE Workplace has much experience in developing such strategies. Call us today to discuss your options. 

How to protect yourself from upward bullying

- Wednesday, April 27, 2016

 

A quarter of Australian bosses are the targets of upward bullying according to a study conducted by Griffith University. Upward bullying occurs when a manager is subjected to bullying behaviour by their subordinates.   Recent research presented at the 10th International Conference on Workplace Bullying in Auckland last week presented new research on the dynamics of upward bullying.

The study conducted by Eileen Patterson, Sara Branch, Sheryl Ramsay and Michelle Barker investigated the power dynamics of upward bullying cases through qualitative research methods involving semi-structured  interviews with six managers from different levels and industries. The research findings indicate that for upward bullying to occur, the normal power imbalance in favor of the manager or supervisor has to be undermined  and the legitimate authority of the manager has to be diminished or removed.

As I have stated in previous blogs,

“One of the main triggers for upward bullying is organisational change.”

This may be a change of working conditions, management or processes.  The influence of one or two disgruntled, negative employees can be profound.  New managers stepping into entrenched group dynamics stand little chance if the team is determined to make life difficult for the new manager. Employees may blame their manager and respond by bullying them.

Upward bullying has the potential to damage a manager's mental health and well-being.  It can cause psychological stress, anxiety, and even depression.  Managers may also lose confidence in their abilities and feel less satisfied in their jobs. Upward bullying also has the potential to impact the bottom line. It can result in lost productivity, increased absenteeism and higher staff turnover, as well as the cost of intervention programs.  

Bullying of managers is characterised by gossip, back stabbing, disrespect, disobedience and a failure to comply with rules. Bullies will question competence and influence newer staff through misinformation. Strong existing or out-of-office relationships with senior managers can also have a significant negative effect on the ability of a manager to manage.

Patterson et al found that the loss of a manager’s legitimate power was caused by a lack of organisational support or staff members perceiving the manager to be an illegitimate leader. Once this swing in power occurs, the manager becomes vulnerable to bullying behaviour from subordinates. The type of behaviours often inflicted include:

  • use of an organisation’s policies and procedures
  • coercive tactics such as humiliation and intimidation
  • use of expertise or access to information to gain an advantage; and
  • ingratiation to those in important positions to gain access to formal power
Strong support for managers by senior management is critical in preventing upward bullying.  So, let’s say you are a manager and you find yourself in this position with little support and disgruntled employees?   Here are my tips based on the studies so far that might help:
  1. Seek support from your management
  2. Develop and maintain close working relationship with your senior managers and powerful people in the business
  3. Ask for coaching or seek mentors to assist with your self-confidence – you’re going to need it!
  4. Resist fighting back with bullying behaviour towards your team
  5. Don’t make significant changes to existing work practices until you have established your credibility
  6. Find a legitimate way to demonstrate your value to the team – find your thing!
  7. Bluff – it might just be a long game of poker.

Self-confidence, awareness of team dynamics and ability to manage recalcitrant and possibly underperforming staff are necessary in these cases.

So it might be a case of keeping your enemies close, your bosses closer and bluffing your way through until you prove your worth!

Supporting new leaders and managers in your business will go a long way to helping them build and maintain legitimate authority within the workplace. WISE Workplace together with its allied businesses can help you provide the right type of support - be it coaching, leadership skills or managing under adversity. For more information on how we may be able to support legitimate leadership contact 1300 580 685.  

Action Needed on Bullying in Victorian Public Health Sector

- Wednesday, April 27, 2016
Bullying Entrenched in Victorian Public Health Sector

The larger the organisation, the greater the potential for bullying and harassment to become ingrained in workplace culture. When this happens, the victim can become the perpetrator, and the cycle continues. The situation may be made worse by management acquiescence, especially if the attitude is “if you can’t stand the heat, get out of the kitchen.”

The Victorian Auditor-General released its report into Bullying and Harassment in the Health Sector recently. It made many findings about how widespread the problem is, and also some strong recommendations for change. 

Background to the report

The Victorian Government commissioned a series of audits that looked at the occupational health and safety of Victorian public sector health workers. One audit considered whether the risk of workplace bullying and harassment was being effectively managed. 

This was the subject of the report. The report noted that serious harm can be caused by bullying and harassment. In 2010, it was estimated to have cost the Australian economy up to $36 billion per annum.  

The report also noted that the problem hits the public health sector particularly hard with:

  • Staff retention issues. 
  • Cost of recruitment and training. 
  • Low morale.
  • Management time spent dealing with the issue. 
  • Legal costs.
  • Damage to reputation. 

A disappointing reflection on leadership
The Auditor-General did not mince words, saying: 

“The leadership of health sector agencies do not give sufficient priority and commitment to reducing bullying and harassment within their organisations.”

The report also found that there were no proper processes in place for early intervention of bullying and harassment issues. More guidance and support was required to improve the public health sector’s management of inappropriate behaviour.

The more specific findings included that:

  • Management did not take bullying and harassment seriously as an OHS issue.
  • Steps were not being taken to identify and minimise risks.
  • There was a consistent failure to hold senior staff accountable.
  • Incidents were under-reported, possibly because of fear of repercussions, the mistrust of human resources staff, or the normalisation of the behaviour. 
  • Policies and procedures were ineffective at regulating inappropriate behaviour because of lack of understanding, ineffective implementation and failure to comply. 
  • Training and education were ineffective because of being voluntary, inconsistent or insufficient. 
  • Early intervention was generally inadequate and staff mistrusted the process.
  • There was no systematic or effective response to formal complaints.
  • There was ineffective guidance and assistance to help the sector implement best practice measures. 

The report noted that in 2013, more than one quarter of Victoria’s public health employees had experienced bullying or harassment. 

The report’s recommendations

With such troubling findings, it is no surprise that the report has made a long list of recommendations. They include:

  • Implementing risk management procedures to identify and minimise inappropriate behaviours.
  • Implementing policies and procedures that are clear and set out accountability for dealing with complaints. Ensuring compliance with policies and procedures.
  • Fostering a positive workplace. 
  • Encouraging reporting of behaviour by taking action on complaints. 
  • Developing and implementing mandatory training on bullying and harassment issues. 
  • Proper documentation of any issues concerning inappropriate behaviours. 
  • Striving for early intervention to minimise damage.
  • Implementing a formal complaints procedure. 
  • Making human resource departments more effective in dealing with the issues. 

The Victorian health sector certainly has a huge job ahead of it. With so many employees having first-hand experience, there is little doubt that there is an entrenched culture of inappropriate behaviour in many of the public health agencies. 

However, the report and its ensuing publicity is perhaps a positive first step in fixing the issues and there is potential to implement sweeping change. We will monitor the progress of the reforms with great interest. 

In the meantime, we know that effective policies and workplace culture play a huge role in the prevention of bullying and harassment. If any of these issues are ringing alarm bells for you and your organisation, WISE Workplace can help. We have vast experience in dealing with bullying and harassment issues and we are just a phone call away. 

The State of Bullying in Victoria

- Wednesday, April 20, 2016
The State of Bullying in Victoria

There has been a deluge of reports coming out of Victoria in the last few months focusing on bullying and harassment. 

The hair-raising antics of former Geelong Mayor Darryn Lyons are detailed in the parliamentary inquiry report released last week. Lyons is reported to have threatened, bullied and displayed other unacceptable behaviours towards staff. 

He is not alone. Earlier in the month, the Auditor-General’s report on Bullying and Harassment in the Victorian Health Sector commented that the sector was unable to prevent or reduce inappropriate behaviour, including bullying and harassment. The report also found that key controls which could reduce the risk to employees were either “inadequately implemented, missing or poorly coordinated.”

In December 2015, the Independent review into sex discrimination and sexual harassment including predatory behaviour in Victoria Police report was released by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). This report found an entrenched culture of what it called ‘everyday sexism’ and a high tolerance for sexual harassment giving rise to significant costs for the organisation. 

What are the statistics?

According to the VEOHRC review, 40% of female employees had personally experienced sexual harassment in their lifetime (higher than the national average of 33%), and 20% had experienced sexual harassment in the police within the last five years. 

Across the Victorian public sector, survey results show 25% of health agency employees and 25% of female police officers have reported being victims of bullying. But interrogating the figures shows significant increases in reports in certain employment groups. A study in 2014 by Monash University into bullying found that 40% of nurses had experienced bullying or harassment within the previous 12 months. 

Similar figures were found in the Royal Australian College of Surgeons (RACS) report, with 39% of surgeons experiencing bullying, and 19% reporting having experienced harassment in the previous 12 months. 

One perpetrator, multiple victims

While the studies found entrenched cultures that permitted bullying and harassment through lack of effective action, it is likely that affirmative action would have a profound positive effect on staff welfare. The inquiry into Victoria Police found that 52% of those who reported being sexually harassed were aware that others were also victimised, and in 81% of cases it was by the same perpetrators. 

What the reports have in common

The studies found many similarities in the structural causes for the prevalence of inappropriate conduct. In particular, they all found there was:

  • Widespread underreporting.
  • Inadequacies in the response when matters were reported. 

When participants were asked why they didn't report, the two dominant reasons were: 

  • Belief that no action would be taken.
  • Fear of retribution. 

Other studies have found that: 

  • 67% of people who experience bullying and harassment do not report it. 
  • Of these, 53% don’t report because they believe that no action will be taken, and 42% believe that reporting will have a negative impact on their career (responders could tick more than one item). 
  • The RACS survey reported 44.9% of respondent’s feared repercussions, but this figure increased to a staggering 93.4% for 31 to 35-year-olds. Presumably this group is heading towards the end of a long and arduous qualifying period. 
What can organisations do?

Changing the culture across a wide range of organisations is no easy task and will require a whole-of-business approach, and a variety of strategies to make a difference. 

Having clear codes of conduct and policies on how to respond are necessary, but just having them is clearly not enough. Codes of Conduct must be known, used and acted upon. 

It is the will to tackle bullying and harassment that is needed now, and this requires training and accountability on how to respond to complaints or conduct when it occurs. 

The development of a clear procedure for responding and investigating complaints is an integral part of this process. Our flow chart on responding to complaints helps bring clarity where confusion lies. Download the free chart, and take a look at our Workplace Investigations Toolkit for expert advice and guidance on a procedure that won’t let you down and will support your managers in doing the right thing. 

WISE Workplace also offers tailored training on all aspects of managing workplace behaviour, so whatever your organisation’s particular issue, give us a call and see how we can help make your workplace a better place. 

Have You Been Accused of Bullying or Harassment at Work?

- Wednesday, March 09, 2016

We first ran this blog in 2014 and from the number of comments we received, it clearly raised issues that resonated with many of our readers.  So by popular demand here it is again.  We welcome your comments, as always.

Bullying and harassment legislation is in place to protect employees from being bullied by their co-workers. If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations.

Although most bullying and harassment claims are legitimate, sometimes accusations can arise from misunderstandings, communication difficulties or can be brought against a manager, co-worker or subordinate out of malice or revenge for a perceived slight.

Accusations of bullying commonly occur where managers or supervisors have provided feedback to an under performing employee, or taken disciplinary measures against them. Management direction isn’t considered bullying, and as long as any actions taken were documented and reasonable, you shouldn’t have anything to worry about.

If you are managing employees and providing feedback on performance it’s important to document all your discussions, and ensure that any actions you take are in line with organisational policies. This can help protect you against false accusations of bullying, and make the investigation process easier and more straightforward if a situation is escalated.

If you have been accused of bullying at work, it’s important to follow company procedure and co-operate with any internal or external investigations. If you are accused of workplace bullying, even if you don’t believe it’s justified, it’s important to be open-minded and listen to the other person’s perspective. Here are a few suggestions to help you deal with an accusation of bullying or harassment without making the situation worse:

  • Remain calm if someone approaches you about your behaviour. Although it can be extremely upsetting to be accused of bullying, getting angry will only aggravate the situation.
  • If you believe that the accusations are false, speak to a senior level employee or your HR department. In many cases where bullying stems from a misunderstanding, the matter can be resolved with mediation from a third party
  • Be prepared to change your behaviour or style of communication. It may be that a few modifications to your actions or manner of communication is all that’s needed to resolve the situation. It’s important not to get defensive and to stay open to any constructive feedback you receive.

With the recent increased awareness of workplace bullying, more employees are becoming aware of the ability to lodge a bullying complaint, especially if they feel they are likely to lose their job, or as a form of revenge against a supervisor.

To reduce the likelihood of false claims, it’s a good idea for managers to provide training to employees to help them distinguish between normal management direction and actions, and bullying. Many bullying claims are a result of misunderstandings or miscommunication and these can easily be prevented with the right training, clear expectations, performance indicators, and documentation of feedback and disciplinary actions taken against individuals.

False claims can be extremely distressing to the person who is wrongly accused of bullying, and can even be a form of harassment in themselves if they are taken out for malicious purposes.

The Year that Was: Lessons from 2015 Part 1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employers must:   

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sticks and Stones: The Physical Impact of Bullying

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

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

WHS requirements

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

Physical impact of bullying

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

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

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

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

the consequences can be tragic

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

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

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

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

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

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

Location: Melbourne
Date: 1-3 December



Stop Bullying Orders: How is the System Working?

- Monday, November 02, 2015
Stop Bullying Orders

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

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

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

The FWC can issue a broad range of orders including:

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

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

Legislative requirements

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

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

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

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

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

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

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

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

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

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

Location: Melbourne
Date: 1-3 December


From Cyberspace to Head Space

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

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

A case with a social media aspecT

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

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

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

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

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

Use of social media in workplace bullying

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

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

The impacts of cyberbullying

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

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

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

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

The psychological impacts of bullying can include:   

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

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

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

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