Cut to the Quick Part II: What Happens Next?

- Monday, September 28, 2015
Encouraging Reporting

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

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

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

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

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

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

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

Blowing the whistle

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

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

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

Other factors to consider include:

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

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

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

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

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

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

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December




Cut to the Quick

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

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

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

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

Draft report findings

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

The report’s key findings are that: 

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

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

Why not complain?

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

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

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

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

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

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

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

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

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December



Essential tips on moving forward…and leaving bullies behind

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

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

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

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

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

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

2. Replacement of someone in an acting position 

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

3. Placement of a new manager into an established team 

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

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

Risk assessment 

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

Rapid response to early signs 

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

Focus on fairness in outcomes 

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

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

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


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Location: Brisbane
Date: 16-17 September

Location: Sydney
Date: 13-15 October

Location: Melbourne
Date: 1-3 December



First Formal FWC Ruling Since Introduction of Bullying Rules

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


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

The Details of the case 

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

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

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

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

The commission’s findings

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

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

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

The FWC ordered that for a period of two years:

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

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

Employers should also take meaningful action around bullying by:

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

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

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October


Group Bullying - A Complex Phenomenon

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

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

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

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

What the studies show

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

Key aspects of group bullying

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

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

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

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

Why is group bullying so hard to deal with?

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

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

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

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

The cost of bullying in australia

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

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

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

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October




How to Stop Workplace Bullying in its Tracks

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

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

How much of a problem is bullying?

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

The importance of workplace culture

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

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

Effective bullying investigations

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

Other strategies to help prevent bullying

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

This is a foundation document which must:

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

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

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

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

Bully or Boss? Finding the Line in Performance Management

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

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

A case in point

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

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

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

The Commission’s findings

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

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

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

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

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

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

Location: Sydney
Date: 6-8 May 2015

Location: Canberra
Date: 20-22 May 2015

Location: Brisbane 
Date: 16-18 September 2015

Surviving Hell - Men and Workplace Bullying

- Tuesday, April 21, 2015
Workplace Bullying and Men’s Sense of Self
Surviving Hell - Men and Workplace Bullying

As a society, Australia is becoming better at dealing with workplace bullying. That is, better at understanding, noticing, preventing, stopping and compensating for injury. Yet we also have so much to learn about the more nuanced after-effects of this scourge within Australian workplaces. One problematic and often ignored aspect of the broader effects of bullying is the devastating impact upon the identity and wellbeing of men. Gender stereotypes around ‘toughness’ and ‘coping’ have a lot to answer for, as we begin to unpack the pressures on men to withstand even the most dire of workplace bullying situations. We look at the specific impacts that workplace bullying can have upon men’s sense of self – as well as the workplace more broadly.

A study in ill treatment
In a recent article by MacIntosh et al, a close analysis was made of men’s responses to bullying. The researchers found that men who were the subjects of bullying in the workplace utilised similar mechanisms afterwards to try to hold on to their sense of self. The participants reported feelings of shock, confusion and a negative shift in identity after being bullied. Many had considerable difficulty in reconciling the way they saw themselves as men, with the way they had been treated. A lengthy process of ‘sustaining self’ was often needed, employing processes such as comparing their earlier identity with their ‘bullied’ self, taking stock, considering help, and coming to terms with the new reality.
Costs and consequences
Most employers understand the basic responses that are needed when a male staff member reports bullying. Yet there is more that can be done by human resource personnel and employers generally when such a report comes through. Certainly, an investigation of allegations will commence, plus leave might be granted for the staff member/s where appropriate. But with only 25% of men who have been bullied staying at the same workplace, more intensive and personalised assistance should be embedded in the employment culture. Without such investment of time, energy and other resources, workplaces stand to lose good workers, considerable corporate knowledge and trust from remaining employees regarding genuine support from ‘the top.’ Worse still, the perception that bullying behaviour is tacitly ignored or tolerated by management can have marked effects upon morale and productivity.
Tailored methods
Because of gender stereotypes that persist regarding the need for men to ‘suck it up’ following an attack like bullying, even good managers and HR staff can miss the indications that all is not well in the workplace. If a male staff member actually does approach HR for assistance around workplace bullying (often extremely challenging), initial contact must be supportive, inclusive and flexible in terms of availability and resource choices. Once the allegation is proved, helping the employee to slowly find ways to sustain his sense of self can greatly increase the chances of wellness being rebuilt, and the employment relationship continuing. 

In terms of policies and procedures relevant to the reporting and treatment of workplace bullying, make sure that these are professionally tailored for the individual workplace. For example, where gender composition or the nature of work could make personal reporting difficult in work hours, ensure that access to help is discreet, multi-channel and appropriate to the situation.
Walking beside
Being bullied – combined with gendered expectations about how they should react – can coalesce into a living nightmare for men in the workplace. Be sure to assist male employees to navigate the difficult path to equilibrium following an incident of workplace bullying. With accessible resources, tailored policies and suitable support, employers can actively assist men in the workplace as they regain their post-bullying sense of self.

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Date: 20-22 May 2015


The Ripple Effect - Bullying Impacts on Observers too

- Tuesday, March 31, 2015
The Impacts of Bullying on Observers
Eye of the Beholder: The Impacts of Bullying on Observers

The all-too-clear effects of bullying upon targeted workers have been closely studied across many years. In a bid to reduce bullying-related injuries and impairments, employers have worked hard to prevent and detect bullies in the workplace. Yet how do those who observe bullying behaviour – yet escape it themselves – tend to fare? Recent findings are beginning to shed light upon the other, often-forgotten people involved in workplace bullying – those who have to observe such behaviour. 

Missing from data, missing from view

In 2014, Cooper-Thomas and colleagues noted that observers of workplace bullying are indeed often left outside of analyses of bullying behaviours at work. Yet with one British study indicating that 46.5% of respondents see themselves as being observers of workplace bullying, it is certainly timely to address the impacts of bullying not only upon targets, but also the unfortunate witnesses of such behaviour. 

Negative effects

It has now been established that observing bullying can raise a number of negative emotional states in the individual. A witness may feel concern for the victim, worry for themselves, and stressful empathic visions of being ‘in the other’s shoes’. Just like direct victims of bullying, observers tend to develop a negative perception of the overall work environment. Compared to personnel with no exposure to workplace bullying, victims, observers and observer/victims generally experience significantly low morale. And not surprisingly, workplaces with high rates of bullying exhibit high conflict, ambiguous role definitions, and unfair leader behaviour. It appears that if we add the numbers of observers to the numbers of victims of workplace bullying, the overall negative effects upon workplace morale and productivity are considerably multiplied.

Constructive management

In the same way as victims of bullying, observers of bullying can suffer psycho-social stress, burnout and an acutely negative attitude towards work. This can flow through to role engagement and productivity, as workers’ wellbeing becomes taxed by these negative observations. Interestingly, the phenomenon of bullying was found to be associated much more with laissez-faire management styles than constructive or assertive styles. That is, when managers are disorganised, hands-off and looking the other way, more bullying arises.

The ripple effect

As well as the negative effects that victims and observers reported, it became clear in the work of Cooper-Thomas et al that the organisation itself suffers as the experience of bullying rises. In this way, there is a discernible ‘ripple effect’ caused by bullying in the workplace. Flowing out from the individual impacts on targets and observers, bullying behaviour causes marked negative effects on reported staff turnover and satisfaction, as well as morale and productivity across the workplace.

Reduce the bullying experience – get constructive

So for employers, it appears that concentrating only upon those effects that bullying has upon single ‘targets’ can be somewhat myopic. Rippling out through targets, bullying observers and then to the wider organisation, the overall negative effects of this behaviour can be vastly underestimated. One of the strongest preventative measures for both bullying and the ripple effect was found to be constructive leadership techniques. 

Where communication is clear, roles are well defined and reporting procedures are accessible, bullying itself tends to dwindle in prevalence. Constructive managers will no doubt need to maintain vigilance against the impacts of bullying. This will necessarily involve not only stopping a bully in their tracks, but also dealing assertively and professionally with the fall-out caused by any ripple effect.  An audit of current reporting procedures, anti-bullying training and risk factors will also go a long way to preventing unacceptable behaviours in the workplace.

Reasonable Action? FWC ruling on Willis

- Tuesday, March 10, 2015
reasonable action
Reasonable Action? FWC ruling on Willis

In a recent matter before Commissioner Lewin of the Fair Work Commission (FWC), some rather interesting findings were made around the question of ‘reasonable management action’. The case in question, Willis v Gibson & Anors, highlighted the reality that a jurisdictional challenge made upon such a basis will be closely examined. 

Communication difficulties

The employer in this case, Capital Radiology, undertook various actions against an employed radiographer named Mr Willis. The employer cited elements of rudeness in Mr Willis’ manner, as well as problems with his written communication. Capital Radiology proceeded to engage the worker in a process that appeared at times to be disciplinary, and at others times had the hallmarks of performance management. Mr Willis, believing that he was being bullied by members of the employer’s management team as a result of this action, sought relief from the Commission in the form of an order under s 789FC of the Fair Work Act 2009. A jurisdictional objection was raised by the employer, contending that the facts upon which Mr Willis relied reflected reasonable management action carried out in a reasonable way. 

Proportionality and misunderstanding

Of particular note was the lack of proportionality between the performance in question and the action taken. Commissioner Lewin noted that disciplinary action needed to represent a "reasonable and proportionate response to the attributes of the employee to which it is directed." The main problems detected by the employer and voiced in a letter of September 4, 2014 involved issues around inefficiency, following directions, attitude and rudeness. The letter to Mr Willis was entitled ‘Disciplinary Process’. 

Earlier, the question of Mr Willis’ email communication had been discussed, and Mr Willis had actually been making attempts to improve in this area. The same was noted by the Commissioner in relation to his adherence to medical imaging processes, which he was working on at the time of the letter. 

The FWC explained that the employer’s negative view of Mr Willis’ manner of communicating had led to an over-reaction when it came to the action taken. As Commissioner Lewin states: “One person’s rudeness may be another person’s frankness.” Mr Willis felt that his employment was threatened by way of the Disciplinary Process letter, leading to his application for an order pursuant to s789FC of the Act. 

Conflation versus clarity

Commissioner Lewin also pointed out how lack of clarity around Capital’s management action processes contributed to the confusion and distress of the worker. Policies around performance management were not separated from disciplinary action for performance-based issues. This contributed to the worker becoming uncertain about his job status, as the processes taken were both confusing and seemingly arbitrary. 

The Commissioner indicated that the procedures carried out by management until September 4, 2014 in all likelihood constituted performance management, rather than disciplinary action per se. As examples, requests for improvement were communicated to Mr Willis and he then proceeded to work on these issues. To then have the language of ‘Disciplinary Process’ brought in from September 4 constituted a threatening situation that did not correlate with the alleged behaviour in question. 

Commissioner Lewin summarises succinctly: “Management action will not be taken reasonably where it places an employee under pressure when the action is not commensurate with the behaviour that is the basis of the disciplinary action.” The employer’s disciplinary objection to the application was not made out, clearing the way for consideration of the substance of Mr Willis’ bullying claim. 

Processes, actions and reasonableness

The matter of Willis reminds us that employers’ HR policies and procedures – particularly regarding issues of performance management and/ or disciplinary action – must be clear both in terms of content and application. As managers work towards facilitating a high-performing workforce, care must be taken to differentiate unambiguously between performance and disciplinary issues. 

Further, any action must be commensurate with the employee’s behaviour. The delicate balance between rudeness and assertiveness in an employee for example must be carefully worked out and an appropriate response devised. And despite frustrating mannerisms and personalities, an employee who is working on their foibles is probably doing what is required under a performance management process. To avoid problems around the ‘reasonableness’ or otherwise of management action, a clear and proportionate response to difficult employees should be developed.