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

- Wednesday, May 29, 2013

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The question under consideration will be ‘reasonableness’.

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

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

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

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

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

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

Has the conduct complained about occurred whilst at work?

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

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

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

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

Is the behaviour reasonable management action?

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

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

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

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

Some simple rules:

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

 

 

Small Business Dismissals 'Need Reasonable Investigation’

Jill McMahon - Wednesday, May 22, 2013

 

 By  Jo Kamira

The Fair Work Commission ordered compensation to an employee dismissed for theft and other misconduct last month in a case that highlights the need for even the smallest of companies to conduct proper investigations before summarily dismissing employees.

In our experience, many small business owners believe they aren’t subject to unfair dismissal laws and don’t have to investigate allegations of misconduct before they terminate someone’s employment.

A ruling in March by the Fair Work Commission – relating to a business that employed just four people - illustrates how this perception is misplaced.

The case involved an employee who was summarily dismissed and handed a letter stating his conduct at work had included “engaging in theft”.

The Small Business Fair Dismissal Code, which applies to businesses that employ 15 or fewer employees, states: “it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.”

The code defines “serious misconduct” as including “theft, fraud, violence and serious breaches of occupational health and safety procedures.”

At issue in last week’s ruling was not whether the employee had stolen from his employer, or even if the employer believed he had done so, but rather whether the employer had “reasonable grounds” for his belief.

In concluding that the dismissal was unfair, Commissioner Ryan said the employer “did not carry out a reasonable investigation” and had only looked at his accounts and jumped to a conclusion. The employer alleged that the employee had ordered cutting wheels and electrodes for himself using his employer’s account.

If the employer had investigated the matter properly, he would have had to interview the other employee in the company who also used the equipment. He hadn’t done that. Moreover, the employer hadn’t even asked the employee about the theft before he was dismissed, or even attempted to locate the cutting discs the employee had ordered.

Whilst the small business code gives an employer the ability to summarily dismiss an employee for theft, with no need to report the theft to the police, this case demonstrates employers should conduct an investigation in order to provide supporting information to show reasonable grounds for their belief.
Click here for the full decision. 

Tips for conducting a simple investigation:

  1. Get the specifics of the complaint and write down the information initially provided to you that gives you your suspicions;
  2. Check the information that is provided to you – ask witnesses and look at documents or check store rooms if it is alleged that property has been stolen;
  3. Document what you do and what you are told;
  4. Provide the accused with an opportunity to give an explanation of what has been alleged  - include specifics and provide a copy in writing if you can;
  5. Be prepared to reconsider your response based on the answers your employee gives you;
  6. Make your final decision when all the information has been gathered and the employee given a chance to explain what happened.

Don’t forget, if the conversation with the employee results in termination/dismissal they should have a support person present.

If you need help with an investigation, WISE Workplace provides a supported investigations service, including advice over the phone.

Lessons from FWC on inferring facts without evidence

Jill McMahon - Wednesday, April 03, 2013


 

By WISE Legal Counsel Alison Page

Investigators can learn a valuable lesson from an unfair dismissal decision by the full bench of the Fair Work Commission, handed down in March 2013.

Although the case was concerned with the application of regulations in the child care industry, it is a timely reminder not to make assumptions, or infer facts. There must be evidence for all findings. The case is also instructive for child protection investigations, particularly those involving the question of "ill-treatment".

In this case, the employee was a director of a child care centre. A parent had recently left a very distressed three-and-a-half-year old in her care. The director was the sole carer on duty when the phone rang in another room about five metres away. She momentarily left the distressed child to answer the phone in the neighbouring room, leaving the door open. She felt compelled to take the call because she thought it may have been an employee phoning in ill.

The child care centre’s supervision policy stated that children should be actively monitored at all times: “Carers should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone.” If a carer had to stop actively supervising a child, they had to ensure another carer replaced them.

On the basis of this incident, plus another unrelated incident, the centre’s management decided the director has breached the centre's supervision policy and sacked her.

The director brought an unfair dismissal action against the centre, which was initially dismissed. The Commissioner found that the "crucial matter" was not whether the toddler was out of the director's sight for a few seconds, but rather that she had "switched her mind to another matter" and left the child unsupervised. In addition "the child was in a state of some distress makes the actions of the [director] of greater concern".  

However, on appeal, the Full Bench of the FWC ruled in favour of the director. They held that the incident was not a valid reason for dismissal. The bench criticised the Commissioner for inappropriately inferring from the evidence provided that the director had "switched her mind to another matter" when she went to answer the phone, and was therefore "no longer giving her attention to the supervision of the child".

The bench did not believe those inferences were available from the evidence.

“While there was evidence to the effect that Ms Read knew the telephone was ringing, thought it may have been a staff member ringing in ill and left the infants’ room to answer the telephone, we do not think it follows that she had switched her mind to another matter and was no longer giving her attention to the supervision of the child.

“This is particularly so when the evidence was that the child was only five metres away, was out of her sight for no more than a couple of seconds and she could hear the child crying. Further, the Centre Policy on Supervision deals specifically with telephone calls and provides that carers ‘should’ avoid speaking on the telephone, not ‘must’ avoid speaking on the telephone…
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