Why Forced Mediations are Doomed to Fail

Vince Scopelliti - Wednesday, May 02, 2018

Mediation can offer effective resolution of workplace disputes. It's a fair process that allows parties to be heard and encourages them to find a resolution both sides are satisfied with. 

Mediation should only be used when parties are willing to discuss their differences. In the case of a bullying complaint, an investigation is required in the first instance, to determine whether there is an active grievance or complaint afoot, causing one of the parties to feel unsafe in the workplace. 

Forcing an unwilling employee to the mediation table can lead to resentment and even legal action. 

How does mediation work?

In mediation, a third party facilitates an open discussion between two parties to help settle a dispute rather than going to court. Both sides are encouraged to reach an acceptable compromise. For employers, the idea is to resolve a dispute quickly and economically. 

while there are pros and cons for mediation, one positive is that a verdict is never 'handed down' but rather, the parties come to the decision together. It's an empowering process, giving the parties input into the outcome. 

The advantage of mediation is that disputes can be reexamined and reframed in order to find the appropriate solution. It's a flexible process that can be tailored to the needs of the players involved. 

A key aspect though, is that all parties need to act in good faith, and be open to discussion and negotiation. If mediation is forced upon an employee, they are likely to feel that the process isn't fair, leading to resentment, a difficult negotiation and disagreement with the outcome. 

Can an employer compel an employee to attend mediation?

While an employer can enforce mediation, and take disciplinary action if an employee fails to attend, there must be grounds to do so, and these grounds must be established. Without grounds, an employer may be left open to a claim of adverse action or victimisation. 

It's important in these situations, however, to carefully consider the reasons why the employee may not wish to be part of mediation. For example, they may fear a power imbalance or bias against them or may feel unsafe in their workplace, due to a bullying complaint which has not been addressed. 

Outlining the process: the role of the mediator

A mediator is appointed to facilitate the process. The mediator does not provide legal advice, nor do they offer legal counsel. A neutral third party, the mediator's role is not to make a decision, but to encourage the parties to come to their own, mutually agreed-upon resolution. 

In most cases, the mediator will make an opening statement and then give each party the opportunity to do the same. During this time, each party will share why they have agreed to the mediation and what they would like to achieve from it. This is not the time to air grievances. 

Just as a meeting is kept on track with an agenda, it's best to have a mediation meeting framework in place to ensure all steps are taken care of and all issues are dealt with accordingly. The agenda should be clearly spelt out and followed. The mediator will help determine what should and shouldn't be discussed and it's the mediator's role to keep the discussion on track. 

During the mediation, private sessions may also be helpful so parties can refresh and refuel. The mediator will meet with the individual parties one at a time to discuss how they are feeling. This process may be repeated if necessary. 

Once each agenda item has been addressed and discussed, a decision will be mutually agreed upon. The mediator will review, finalise and capture the agreement in writing. 

Approaching mediation

Asking an employee to mediate their grievance is a reasonable request - after all, restoring the peace between employees is important for business, and ensuring employees relations are happy and healthy is paramount. 

However, mediation will only work if the parties truly want to mediate. This means they want to come to an agreement together, and there's no possible reason why one party may be afraid or uncomfortable during the process. 

Forced mediation is not likely to be effective, as it is one-sided. 

When expert assistance is required

If the parties cannot find agreement on all agenda items, or there are behavioural concerns, it may be necessary to explore possible resolution options with an experienced external workplace mediator. 

If you need some support in how to conduct a mediation, need to engage a mediator, or would like to resolve a workplace conflict, contact WISE

How to Improve Workplace Harmony

Vince Scopelliti - Wednesday, March 28, 2018

Maintaining workplace harmony should be a key focus of every organisation. Conflict in the workplace can lead to behaviours such as bullying, harassment and discrimination. Staff can lack motivation, fail to work as a team and be generally unhappy. 

So how can employers and staff deal with conflict, and encourage staff to work together to promote harmony in the workplace? 

Common causes of workplace conflict

Organisational or operational changes can cause employees stress and discomfort. These can include changes in management, procedures, duties or position descriptions, redundancies, staff changes and particularly a restructure. The increased stress and pressure on employees may be reflected by an increase in complaints received in the workplace.

The following factors also increase the likelihood of disharmony in the office environment.

  • A lack of communication, whether between co-workers or between management and staff;
  • A failure to share a vision, or a misunderstanding of what the business' goals or team's core focus is;
  • Mistrust or suspicion;
  • Insufficient leadership - or at the other extreme, micromanagement. 

how to prevent DISHARMONY turning the workplace toxic

It is important for employers to tackle any potential cultural issues straightaway - if tensions are left to fester, small, easily solved problems are likely to become much harder to deal with. 

Tips to avoid conflict and disharmony include:

  • Clearly communicating a zero tolerance attitude towards bullying, victimisation, discrimination and other negative behaviours;
  • Introducing clear workplace policies setting out expected standards of behaviour from all employees, and ensuring that these are well-communicated, easily accessible and complied with by everybody in the organisation, including senior management;
  •  Applying change management principles to any necessary changes to operational, procedural or structural matters;
  • Encouraging 'buy-in' from employees by creating common goals for all staff in the organisation. This should motivate everybody to work together;
  • Making your organisation a great place to work and an employer of choice - in particular by encouraging staff to have a healthy work-life balance;
  • Holding employees accountable for their work and rewarding them appropriately for good performance;
  • Training managers in conflict resolution, so they can step in early and deal with issues;
  • Hiring new staff based on their cultural fit and their compatibility with organisational values. 

Employees also have a role to play in creating workplace harmony, by doing their jobs to the best of their ability, showing commitment to their work, raising issues when they arise and adhering to workplace policies and procedures.  

what is the role of mediation?

When conflicts do arise, mediation can be an extremely useful tool. It can facilitate a discussion between employees who are in disagreement and find common ground or a compromise to deal with ongoing issues. 

However, mediation should not be used as a band-aid measure to try and resolve ongoing conflicts or when an active grievance is afoot. In this case, prevention by creating a harmonious workplace culture is truly the best cure.

when is an investigation required?

In some cases, workplace conflict and disharmony cannot be dealt with by a mediation process and an investigation is required in the first instance. 

This is particularly appropriate in circumstances where one party has been accused of misconduct or inappropriate behaviour, and the accused is hoping to clear their name. Similarly, if a workplace policy has been breached and there are potential legal or industrial ramifications, an employer is obliged to conduct a thorough investigation. 

Conflict management and workplace mediation can help avoid the disruption and disharmony which workplace conflicts can produce. Should your workplace require assistance in managing workplace disharmony, WISE Workplace provides mediation services and investigation services. Contact us today for an obligation-free discussion and cost estimate.  

Stand By Me: The Role of the Support Person

Vince Scopelliti - Wednesday, February 28, 2018

For an employee who is on the receiving end of disciplinary action, performance management or a workplace investigation, it is an upsetting, and even a potentially traumatic experience. 

Every employee involved in such a process is entitled to have a support person present during any meetings or interviews. 

A failure to afford an employee a support person can result in the process being deemed a breach of procedural fairness, and the outcome may be declared invalid upon review.

what is the role of a support person?

The role of the support person in any interview or meeting is to provide moral and emotional support, ensure that the process is fair, and to assist with communication - they are not required, or permitted, to act as an advocate, put forward a version of events or make an argument on behalf of the employee.

While support persons are entitled to ask some questions about the process, it is crucial that they don't respond or answer questions in terms of the substance of the matter, on behalf of the employee. 

A person engaged as a translator cannot generally act as a support person at the same time.

CAN AN EMPLOYER DENY A REQUEST FOR A SPECIFIC SUPPORT PERSON?

Only in certain exceptional circumstances the employer can refuse to have a specific person sit in as a support person. 

These circumstances include where the requested support person:

  • Holds a more senior role in the organisation than the person who is conducting the interview - thereby creating a risk of undue influence or pressure by the support person on the interviewer;
  • Could be disruptive to the process or has their own agenda (such as a former employee or somebody who is known to be on bad terms with management or the executive);
  • Is involved with the subject matter of the investigation or may be witness to some of the events. A person who is involved in the investigation in some way cannot be seen to be neutral and it is not desirable for a potential witness to have access to the respondent's evidence. 

Although employers may be able to object to a specific support person who has been requested, they are required to advise employees of their right to select a different person.

tHE ATTITUDE OF THE FAIR WORK COMMISSION

When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during any interviews. 

Best practice for employers

To ensure best practice in disciplinary or investigative processes, the following steps should be undertaken:

  • Employees must be advised of their right to select a support person for any relevant meeting
  • Employees must have the opportunity for the meeting to be organised, within reason, at a time when the support person is available
  • The support person must receive a clear explanation of their role - that is, to provide moral support only. 
  • The employer must take into account any additional considerations that could apply, such as those involved in an Enterprise Agreement or similar negotiated agreement with the employee. 

Offering employees a support person to attend any meetings and interviews related to disciplinary action, performance management, or workplace investigation with them, is crucial to the fair outcome of these processes. 

For more detailed information on conducting interviews, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today.  

Conducting Workplace Investigations: What You Need to Know

Vince Scopelliti - Wednesday, January 31, 2018

Part of running an effective organisation is ensuring that all staff are held accountable for their actions in the workplace, and are able to air grievances and raise complaints in a safe forum. This means that employers may need to undertake investigations into staff misconduct from time to time. 

Managing an unbiased and thorough workplace investigation can be a challenging and complicated process, particularly given the need to deal with sensitive topics and personal feelings. 

So, what are the most important things you need to be aware of when conducting a workplace investigation?

understanding why an investigation is necessary

All employers have a duty to provide a healthy and safe place of work. This includes obligations around workplace bullying, which can be enforced by the Fair Work Commission. 

Workers Compensation claims can arise from employees experiencing stress or other physical or mental harm because of issues with co-workers. If the alleged behaviour is serious enough (such as sexual harassment or assault for example) the employer could become civilly or even criminally liable. 

Employers must conduct fair investigations into all types of allegations made by complainants. Similarly, the accused worker has the right to have the complaint against them determined objectively and the sanction decided on by an unbiased decision-maker.

how can your human resources team support you?

If your organisation is large enough to have a dedicated Human Resources officer or even an HR team, it can be extremely helpful to have them involved in an investigation. 

Your HR team can facilitate a successful investigation by:

  • Keeping open channels of communication with both the complainant and the respondent (as long as confidential information is kept private);
  • Providing a clear timeline and outline of processes;
  • Ensuring that staff are aware of their rights to have support persons involved;
  • At all times maintaining respectful contact and a clear demonstration of objectivity when dealing with witnesses or parties involved.  

fact finding vs formal investigation

Any workplace complaint requires a process of fact-finding or initial enquiry, whereby a third party interviews both the complainant and the accused party for information about what happened. The objective of this process is to determine whether the matter is serious enough to warrant a formal investigation or whether the conduct complained of can for instance be deemed trivial or minor in nature and can be dealt with on that basis. 

A formal investigation process goes much further. It requires the collection of information and evidence, interviewing of witnesses and the drafting of formal statements, the preparation of a detailed investigation report, analysis of the evidence and subsequent detailed consideration by key decision-makers as to the appropriate consequences.

The need for procedural fairness 

A key element of any workplace investigation is to ensure that all parties are afforded procedural fairness - a failure to do this could result in criticism of any decision taken by the employer after the investigation and could expose the organisation to legal liability.

The key elements of procedural fairness include:

  • Providing adequate information about the allegations, generally in written form, and the potential consequences if the employee is found to have engaged in the alleged behaviour;
  • Permitting a reasonable amount of time for the employee to respond to the allegations;
  • Allowing a support person to be present during interviews and providing adequate notice to the interviewee to arrange a support person of their choice;
  • Ensuring that the investigator as well as the ultimate decision-maker is unbiased and objective;
  • Ensuring that decisions effecting the employee are based on evidence. 

So what is involved in conducting a workplace investigation?

The key elements of an effective investigation include:

1. Planning the Investigation

  • Adequate planning before the investigation starts, including considering any potential conflicts of interest;
  • The investigator familiarising himself/herself with the potential consequences which could flow from the investigation, and ensuring that all relevant parties will be interviewed;
  • Preparing a list of interview questions for each witness;
  • Gather and review relevant documents such as the complaint, employment contracts, performance reviews, relevant policies and procedures, incident reports, and any other relevant emails, notices, memos, other documents and information;
  • Notify all parties of there involvement, rights and obligations. 

2. Interviewing

  • Provide sufficient notice and make appropriate arrangements with all witnesses
  • Conducting formal interviews objectively and sensitively, having regard to the circumstances;
  • Checking that representation or support has been offered and outlining the investigation process and timeline;
  • Obtaining as much detailed evidence as possible

3. Analysing and Weighing the Evidence

  • Assessing the evidence with regard to reliability, consistency and credibility;
  • Preparing an investigation report setting out your findings, including the behaviour that has or has not occurred and consider whether it is unlawful, unreasonable, or a breach of policy;
  • Coming to a conclusion and making a finding, based on the evidence gathered. 

4. Facilitating a Resolution

  • This could include making amendments to business policies, training improvements, broad disciplinary action, mediation and counselling. 

When to ask for help

The consequences of a flawed investigation can be serious: decisions can be challenged in the courts, reputations can suffer and employee morale can take a nose-dive. 

In some situations, it may not be appropriate to conduct an investigation internally, and an external investigator is required to help ensure a fair and unbiased process. 

This could include situations where: 

  • Serious allegations are made and there is a potential risk of criminal or civil litigation;
  • Complaints are made against senior employees;
  • A real or perceived conflict of interest exists, meaning complaints cannot be investigated objectively internally; 
  • There is a need for legal privilege to cover the circumstances;
  • There are insufficient internal resources, where your organisation is simply not able to investigate a complaint thoroughly, due to a lack of expertise, particularly if it involves multiple parties or complex issues that require specialist knowledge. 

If you require assistance with investigating allegations of misconduct, contact WISE Workplace. We offer full investigation services, supported investigations and staff training on how to conduct workplace investigations. 

The Cost of Aggressive Leaders

Vince Scopelliti - Wednesday, January 24, 2018

There are many different skills which are required for an effective leader - such as excellent communication skills, perseverance, the ability to inspire and motivate staff, clarity of thought, and efficiency. But one detrimental trait that many leaders may possess is aggression.

Although it is often accepted that a domineering personality seems to go hand in hand with successful leadership, in many situations it can actually get in the way of optimal and effective management.

a bad habit or a behavioural strength? 

There are different levels on the scale of aggression - and indeed, for some jobs a level of combativeness is almost an essential quality. From a CEO accustomed to facilitating hostile takeovers, to a litigator who must take charge of a courtroom, to a police officer, in these careers, behavioural traits which are more closely aligned with aggression can be helpful. 

Contrast this with "softer" jobs, such as a primary school teacher, a nurse, a psychologist or a social worker, and it becomes apparent that certain personality traits are much better suited to some industries than others. 

Hiring managers and HR managers responsible for recruitment and selection of managers need to be aware of the difference between simple assertiveness and unbridled aggression or even narcissism.

the difference between assertive and aggressive

A "positive" and assertive boss might:

  • Engage in competition against external competitors, but support a whole team ethos;
  • Be forthright and open, including potentially critical - but be equally willing to accept criticism of their own methods;
  • Seek facts;
  • Respect the rights of staff to their own opinions. 

In comparison, a "negative" aggressive or narcissistic boss may:

  • Constantly compete with their own staff;
  • Belittle or punish those who disagree with the leader;
  • Base decisions on their emotions or feelings rather than rational or logical conclusions;
  • Mock or otherwise put down staff; 
  • Yell, gesture, stride around or otherwise engage in physically intimidating behaviours.

the downsides of aggressive behaviour in the workforce

In its most basic form, employees who work for aggressive leaders can be uninspired and unhappy, often not wishing to come to work. A leader who storms around like a bear with a sore head, as the expression goes, is likely to cause, or at the very least contribute to, a toxic workplace. 

This, in turn, can lead to significant losses in productivity, high rates of absenteeism or presenteeism (where staff physically turn up but do not properly fulfil their duties) and excessive staff turnover. 

changing leadership behaviour 

It can be difficult to modify leadership behaviour, particularly when it comes to leaders with type-A personalities, which will likely mean that they are reluctant to accept criticism or receive feedback well. 

Strategies for changing leadership behaviour, or at least improving the ability of staff to deal with aggressive leaders, include:

  • Building a strong relationship between the leader and the rest of their team, including by encouraging open communication and fostering the ability for human resources staff as well as team members to provide feedback on decisions made by the leader. 
  • Appeal to the leader's sense of logic and highlight the potential impact of their actions on the business.
  • In the case of narcissistic leaders, it can be helpful to frame feedback on their behaviour in terms of how it might negatively affect their goals, rather than as a direct personal criticism.
  • Stop supporting this type of behaviour by refusing to promote or reward leaders who are aggressive, and who refuse help to modify their behaviour. 

Taking a few simple steps towards correcting the ongoing behaviour of an aggressive leader, while still highlighting the importance of strength in decision-making, can help to significantly improve the satisfaction, productivity and quality of your workers. If you believe you have an aggressive leader or a toxic workplace where an investigation or cultural review would help, contact WISE today for an obligation free quote. 

Tackling a Toxic Workplace Culture

Vince Scopelliti - Wednesday, January 17, 2018

Many people start off each year with a bundle of resolutions - to eat better, to exercise more, to spend more time with the kids... the list goes on. The start of a new calendar year is also a fantastic time for businesses to take stock and reassess. If your workplace culture is getting in the way of your business fulfilling it's potential, make change your top New Year's resolution for 2018.

what is workplace culture? 

Culture is loosely defined as the beliefs and behaviours that govern how people act in an organisation. 

While it is often considered to be a vague concept, how workers interact with each other is an incredibly important part of work life. Good organisational culture is now believed to be a key factor in a business' success or failure. 

If staff feel uncomfortable, unhappy or excluded, they will obviously not enjoy coming to work - which generally means that they will be less motivated, less productive and reluctant to go beyond the call of duty when asked.

how to identify if your workplace culture is bad

Whether a workplace is toxic or not is difficult to define. Generally speaking, if people are unhappy at work more often than not, you are dealing with a poor workplace culture. 

Factors that can contribute to a toxic culture include:

  • Staff not being trusted to take calculated risks or perform their jobs without being micromanaged.
  • Workers constantly being asked to perform under significant pressure and without adequate resources being allocated to assist them.
  • A lack of clarity or top-down direction.
  • Poor leadership behaviour or interaction 

what happens when workplace cultures are toxic

Toxic cultures can breed hostile, pessimistic team members, drive away top talent and prevent organisations from reaching their full potential. 

Some signs and consequences of toxicity include:

  • Increasing staff conflict
  • High staff turnover
  • High levels of absenteeism
  • Presenteeism (where people physically show up at work, but don't perform their duties to the best of their abilities)
  • Increased workers' compensation claims
  • Complaints of bullying or other types of harassment 

HOW to chage a negative workplace culture

In order to address workplace toxicity, employers need to be prepared to tackle issues head-on. 

These 10 steps towards changing workplace culture for the better can help make the task less daunting.

  1. Identify and assess the underlying problems. This is best achieved by issuing a staff survey, conducting exit interviews to determine why staff are leaving, or otherwise encouraging open and honest feedback. 
  2. Establish a concrete company vision. Ensure that all employees are engaged with the vision and understand where the business is headed.
  3. Rinse and repeat - ideally, make sure that surveys and opinion polls are conducted on a regular basis to identify what factors may be improving or worsening the workplace culture.
  4. Encourage consultation and open communication. In addition to helping filter ideas and feedback up to the leadership team, this makes staff feel valued and assists in reducing emotions such as frustration or anger.
  5. Facilitate friendships and encourage team building. If your staff actually like each other, they are much more likely to take additional steps to support co-workers and the business. 
  6. Be consistent and fair. One of the biggest gripes of staff who feel they operate in a toxic environment is that their supervisors seem to change attitudes on a regular basis, or that responses are likely to vary depending on what mood the boss is in. 
  7. Maintain a sense of fun - all work and no play makes Jack a dull boy, as the saying goes, and creating a workplace where staff feel at home is much more likely to improve morale. 
  8. Pick your team wisely. When selecting and hiring new staff, consider how they will fit into the team and how they will get on with your other workers.
  9. Be physically present. Although senior staff will doubtless have different hours and regimes to stick to than average workers, it is disheartening to see supervisors roll in regularly at 11am with coffee in hand, head out for long lunches and then leave in the early afternoon. Allow your staff to see that you are working just as hard as they are. 
  10. Recognise the efforts of staff. Whether this is through an employee of the month program, an annual awards dinner or simply ongoing quiet acknowledgement of good performance, ensure that staff know they are appreciated. 

So, start this year the right way - make your workplace somewhere your staff want to be, instead of somewhere they have to be. And if you're having difficultly with a toxic workplace culture, WISE can help, through out investigation, mediation and governance services. 

A Modern Problem: The Face of Workplace Bullying in 2017

Vince Scopelliti - Wednesday, December 20, 2017

Workplace bullying comes at a high price for Australian businesses and employees, costing billions and leaving a trail of physical and mental health issues in its wake. 

Even though employers are becoming increasingly conscious about bullying and most have anti-bullying policies in place, it is still very prevalent in 2017. 

We take a look at what types of behaviour constitute workplace bullying, its magnitude, and some of the key cases heard by the Fair Work Commission (FWC) this year.

the nutS and bolts of it

Workplace bullying can come in many forms. It can be broadly defined as repeated unreasonable conduct and can include different types of abusive behaviour, whether physical, verbal, social or psychological, that occurs at work. It does not matter whether the behaviour is engaged in by a manager, a boss, or co-worker, or what the employment status of the victim is. 

Many different types of behaviours can fall within the meaning of workplace bullying. Some of the most obvious ones include:

  • Physical intimidation or violence
  • Excluding co-workers from social or work-related interactions
  • Mocking or joking at the expense of somebody in the workplace
  • Spreading gossip or rumours
  • Threats of violence or abuse

There are also a number of more subtle types of abuse frequently being employed in workplaces. According to research released in June 2017, these include: 

  • Unnecessarily micro-managing an employee so that they cannot perform their role effectively - or not providing enough supervision and support in order to permit a job to be performed competently
  • Consistently providing work well below an employee's competency 
  • Frequent reminders of errors or mistakes
  • Setting unreasonable deadlines or timeframes
  • Ignoring opinions or input
  • Exclusion from work or social events. 

what is the extent of workplace bullying

Workplace bullying is prevalent in Australia. 

According to research undertaken for BeyondBlue, almost half of Australian employees will report experiencing some type of bullying during their working lives. Workplace bullying can impact performance and career progression, and result in a range of physical and mental health issues. 

It is estimated to cost Australian organisations up to $36 billion a year. 

the need for an anti-bullying culture

In order to appropriately respond to the many different types of bullying - including some of the more hidden, indirect types of bullying set out above - employers must implement clear and direct anti-bullying policies outlining what type of behaviour is considered to be unacceptable. 

Rather than solely focusing on punitive measures for dealing with inappropriate behaviour, employers are also encouraged to attempt to build a positive workplace culture through feedback, independence and trust. 

WHen employers are accused of bullying 

Given that almost anything could potentially lead to allegations of bullying, it is not surprising that many employers are concerned about being unable to treat employees with anything other than kid gloves. 

However, employers are within their rights to performance manage, discipline, retrench or otherwise alter the employment conditions of an employee in appropriate and legally permitted circumstances.  

how did the fair work COMMISSION view bullying in 2017

A number of cases before the FWC this year highlighted the need for fair and unbiased investigation of bullying allegations, and demonstrated that employers taking appropriate steps to discipline or dismiss an employee won't be penalised. 

Case Study 1: The email is mightier than the sword

In early 2017, FWC upheld a ruling that Murdoch University was right to terminate an employee for serious misconduct. That employee had sent a number of abusive emails - from his university work account - to the chief statistician of the Australian Bureau of Statistics (ABS). 

Even after complaints were forwarded by the ABS directly to the University, the employee continued to send emails to the chief statistician, and forward those on to third parties, including a federal member of parliament. In one of those emails, the worker tacitly acknowledged that his behaviour was bullying, and stated that 'bullying is the only way to deal with bullies'. 

Prior to his correspondence with the ABS, the employee had already emailed another colleague and accused her of being deliberately dishonest and suffering from mental health issues. 

Ultimately, Murdoch University stood down the employee on full pay while an investigation was conducted. It also took steps to change investigators on more than one occasion, after the employee complained about the staff investigating the matter, before ultimately dismissing the employee. 

This case is an important reminder for employers that taking appropriate and lawful steps to investigate and, if necessary, terminate employment will not constitute bullying.

Case Study 2: Lawful adversaries - bullying in law school

In another bullying case involving a university, a Deakin University law lecturer sought the imposition of anti-bullying orders on a co-worker.

Although the accused professor had previously been charged with misconduct while working at another university, the FWC refused to allow the provision of materials relating to those earlier allegations. It noted that previous management behaviours of the professor were not relevant to new claims of bullying. 

Those materials also reportedly contained commercially sensitive information regarding other employees. This reinforces the message that employers and senior staff should not feel as though they are prevented from taking steps to discipline staff without being accused of bullying, despite any previous allegations. 

Case Study 3: A failure to properly investigate

Employers must take care to properly investigate all allegations of bullying within the workplace, not only to protect the victim but also to afford due process to the accused. 

This was the case in a recent FWC decision, which determined that a mother and daughter had been unfairly terminated amidst allegations of bullying and fraud. 

The director of the abortion clinic in which the mother and daughter worked had terminated their employment after registered nurses made various complaints about the duo, including that they took excessive smoke breaks, failed to record information properly in time sheets, and had made inappropriate threats of dismissal to the nurses. 

The director failed to appropriately investigate the allegations and, crucially, did not give the terminated employees sufficient time to properly respond. The FWC found that this demonstrated favouritism and nepotism (in circumstances where the director had apparently wanted to install his own wife and daughter in the newly available roles). 

Case Study 4: Getting it both right and wrong

Even when an employer's disciplinary actions are ultimately deemed to be appropriate in all relevant circumstances, their response may still fall far short of best practice. 

That was the case when the Paraplegic and Quadriplegic Association of NSW (Paraquad) was held to have properly dismissed a carer whose major depressive disorder meant that she no longer had the capacity to properly fulfil her role. 

However, the employee complained before her dismissal that she had suffered years of bullying and harassment which had exacerbated her psychiatric condition. This was not properly taken into account by Paraquad's HR department - even when provided with medical evidence supporting the employee's allegations as to the source of her condition. 

The FWC was particularly critical of the HR department's decision not to properly investigate the bullying allegations, because the employee had not followed workplace protocol in making her complaints. 

Case Study 5: Lessons in discourse

 Another interesting development this year revolved around language. Fair Work Commissioner Peter Hampton explained at the annual Queensland IR Society Convention in October 2017 that he eschews the use of words such as 'bully', 'victim', or 'allegeable'. It is advisable to avoid unhelpful labels which might shoehorn parties into certain roles. 

A similar approach is being encouraged in the Queensland Public Service Commission, particularly when dealing with domestic violence, where labels such as 'perpetrator' are actively discouraged and a rehabilitative approach is desired. 

The take home message

So what lessons can employers take away from the way the FWC has dealt with bullying in 2017? In summary employers should:

1. Take all complaints of bullying seriously, and conduct unbiased, fair investigations

2. Ensure that those accused of offences are afforded due process and have the opportunity to respond to allegations against them

3. Take positive steps to devise and implement workplace policies which make it clear that bullying behaviour will not be tolerated and will be investigated as necessary

4. Ensure that any action taken to discipline or dismiss an employee is reasonable and appropriate. 

For expert assistance with these and any other matters related to workplace investigations and how to respond to workplace bullying complaints, contact WISE Workplace today.  

'I Was Sent to Coventry' and Other Social Bullying Techniques

Vince Scopelliti - Wednesday, October 25, 2017

When we think of bullying, the clichés of schoolyard taunts might spring to mind. Yet as we learn more about the wide-ranging techniques of bullying, it is clear that this deeply complex phenomenon can be hard to pin down. 

For example, being ignored, or made an outcast in any situation - 'sent to Coventry' - can be highly distressing. This insidious brand of social bullying unfortunately arises in many workplaces, causing pain and anxiety for victims.

what is bullying? 

Bullying can be physical (including hitting or even destroying property), verbal, cyber (such as bullying on social media), and social. 

A person being 'Sent to Coventry' is a form of social bullying. 

So what do we mean by a person being 'Sent to Coventry'? Historically the phrase appears during the English Civil War when prisoners would be sent to the eponymous North-Western City for punishment, and experienced isolating treatment by locals. But how does this tend to manifest as workplace bullying? 

Picture this: on the surface, the workplace looks pleasant. There is occasional chatter and people seem content. But look closer - on Friday lunch excursions, one person appears to be ignored by the others as they leave. In meetings this person's colleagues seem to ignore their ideas, or quietly mock them when they have the courage to speak. They have also mysteriously been kept off the roster except for a few skeleton shifts... and so on. 

These are classic moves of ostracism as a weapon for workplace bullying. Left unmonitored, such behaviour can lead to severe stress and mental health problems for the outcast employee. 

The worker might originally have committed a 'sin' in the eyes of co-workers - perhaps told management about colleagues misconduct, or appears to be given special treatment. On some level, one or more workers have judged this as being unforgivable, leading to a long and toxic period of unrelenting silence, mockery and isolation.

bullying women, bullying men

What are the gender differences when it comes to social bullying? Unfortunately, this more covert behaviour seems to be a particular feature of female-to-female bullying

The phrase 'deafening silence' sums up the effect of this form of workplace bullying, where a worker is deliberately placed on the outside of a work group dynamic by one or more of their colleagues. 

The mechanisms are often subtle, and certainly challenging for management and workplace investigators to detect or prove. Yet by their very nature, stealthy and outwardly ambiguous bullying tactics in the form of ostracism and freezing-out can be painful and injurious for the victims of such attacks.

Men can also engage in subtle forms of social bullying, but are more likely to add overt actions as they bully a fellow worker. Particularly where rank or divisions enable such bullying, male offenders might sabotage the atmosphere and opportunities for targeted colleagues, later escalating to overt physical and verbal abuse. 

pulling rank - the hierarchical workplace

In the armed forces, emergency services and police, there is an opportunity for those in particular positions to 'close ranks' as a form of workplace bullying. For the victims of such behaviour, equipment can mysteriously go missing and vital operational information can 'somehow' bypass the bullied person. Aggressive taunts are also more likely in rank-based organisations.

questioning what is true

Most 'quiet' forms of workplace bullying seem to evaporate when management or a workplace investigator shows up. Also, consummate 'Coventry' bullies will sometimes alternate their attacks with neutral or even pleasant exchanges with the bullied worker. 

The victim is left on the back foot, unsure of what is real or imagined and often quickly becoming susceptible to both functional and mental decline as a result. Such 'gas lighting' attacks often cause the most long-term harm to a worker. 

Investigators must be vigilant in exploring alleged workplace bullying of this type. Common mistakes in the field can be when those investigating warm to often-extroverted perpetrators; bullies are masters of manipulation and can at times seem charming.

Conversely, the worker claiming bullying might appear nervy and unclear in their communication - perhaps even a little 'odd' compared to other workers. Rather than using this as a basis for dismissing the allegations, the history and behaviours behind all interviews must be carefully collated and compared with utmost objectivity. Indeed, the unusual presentation of a worker might in fact indicate a reaction to the effects of a covert system of workplace bullying.

Gathering evidence from multiple witnesses will often assist in identifying if there have been any patterns of behaviour from the perpetrators. 

When it comes to claims that a worker has been 'Sent to Coventry' and subjected to social workplace bullying, it is important to approach the ensuing workplace investigation with care. 

WISE Workplace is happy to assist you with any queries you might have regarding the right way to investigate any alleged workplace bullying incident. We offer unbiased, professional investigation services, carried out by a qualified and experienced team.

Bullying in High Stress Workplaces: Can an Investigation Help?

Vince Scopelliti - Wednesday, August 30, 2017

A disproportionately high number of allegations of bullying in emergency services and other high stress environments have led to a referral to the NSW parliament for an inquiry in May 2017, looking at the policy response to bullying, harassment, and discrimination in certain emergency services. A review is also being conducted by the Victorian Equal Opportunity and Human Rights Commission of allegations of bullying and harassment into the MFB and CFA. 

The very nature of the tasks undertaken in these workplaces understandably provokes a variety of extreme responses in both senior and lower-level staff. A combination of observed trauma, time-critical demands and associated spikes in adrenaline for individual professionals can lead to tense communication and decision-making.

It is essential that Human Resource (HR) managers take an objective approach towards all issues raised by the parties when allegations of bullying in emergency services arise. 

In many cases, a well-planned workplace investigation will mark the difference between costly repercussions and an efficient resolution of issues within these high stress environments. 

Alarming workplace reports

Incidents of workplace bullying are on rise across Australian emergency contexts. A 2017 report on emergency departments highlighted the deplorable extent of workplace bullying reported amongst emergency doctors. Shaming, verbal abuse and sexual harassment were just some of the parlous behaviours reported by 1/3 of survey participants.

Similarly, NSW has announced that the extent of workplace bullying within emergency services now requires a dedicated investigation. There are indications that the hierarchical nature of these services leads to the depersonalised treatment of personnel involved. 

Submissions for the NSW Parliament inquiry closed in July, with hearings scheduled for September - October 2017. During the inquiry, police, ambulance and fire services will each be scrutinised in relation to allegations of bullying and the troubling aftershocks that can accompany such incidents. 

Workplace bullying and hr responses

The importance of HR departments in recognising and dealing promptly with allegations of workplace bullying in emergency services cannot be overstated. 

As part of this focus, it is essential that any workplace investigation into alleged bullying be carried out in a professional and objective manner. Moreover, important decisions need to be made about an organisation's capacity to conduct an investigation that complies with the demands of procedural fairness. 

In some matters that are likely to prove particularly complex or sensitive it might be preferable to source the expertise of a trained workplace investigator. 

If HR managers can find prompt and accurate answers to these questions, any future costs of workplace disputes are likely to be mitigated. 

THE good and the bad of workplace investigations

Unfortunately, even a workplace investigation, if carried out without careful preparation and execution can be entirely unproductive - or even a costly blow to the organisation. At times, employers can underestimate their own lack of objectivity during investigations of workplace bullying. Unlike many workplace procedures, knowing the people involved can actually prove a hindrance to workplace investigations. The ability to see things in a truly fresh and clear manner is crucial to investigations; and sometimes hard to muster if preconceptions exist. 

Some employers are fortunate enough to have within their ranks staff that are fully trained in the nuances of workplace bullying allegations and the right way to conduct workplace investigations. When carried out correctly, an in-house investigation can do all that is necessary to produce a fair and accurate investigation report. 

Yet if any doubt remains about the potential bias, pre-judgement or lack of resources within the organisation, then an external workplace investigation will pay dividends. If an investigation has fatal flaws that are later picked up in official proceedings, then employers will find themselves in an unenviable position.  

investigation woes: a case in point

In a recent Federal Court matter, Justice North made a piercing analysis of the deficiencies in one organisation's methods of investigation. Victoria's Royal Women's Hospital conducted a workplace investigation into the alleged contribution made by a neonatologist to the deaths of two infants. His Honour explained that the deficiencies within the investigation report were significant. Vague allegations against the worker and the lack of specifics concerning event, time and place led to a report that was devilled by 'apparent holes' as well as 'pollution' from fraught relationships. 

The case highlights the importance of gaining true objectivity from the situation whenever a workplace investigation is undertaken.

Care at every turn

Employers understand that when allegations of workplace bullying arise it becomes essential to keep the elements of procedural fairness front-and-centre. HR and senior management must make fast and accurate decisions about how and when to activate a workplace investigation. 

Considering the disproportionately high number of allegations of workplace bullying in emergency services, it is hoped that good decisions are made around the best way to investigate these troubling situations. 

Should you or your organisation be seeking clarity on the best way to conduct a workplace investigation, please get in touch with us. 

Performance Management to Avoid Bullying Complaints

Vince Scopelliti - Wednesday, July 19, 2017

Staff who are subject to increased employer supervision or performance management may feel that they are being personally victimised, attacked or even bullied.

It may be difficult to distinguish between reasonable performance management and bullying, especially when the worker involved is sensitive by nature, has personal stress factors, fails to acknowledge their own performance shortcomings or is emotionally reactive. This leads to an increased risk of bullying complaints when staff members are being performance managed. 

So how can employers use performance management steps to manage their staff to meet operational requirements without risking censure, criticism or complaints of workplace bullying?

When is performance management reasonable?

The following guidelines apply to reasonable performance management:

  • 'Reasonableness' should be judged objectively, rather than basing it on the worker's perception;
  • Management actions do not need to be perfect or ideal to be considered reasonable;
  • A particular course of action may still be 'reasonable action' even if all the separate steps, when seen in isolation, are not;
  • Consideration may be given to whether the management action was a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. 

To guard against the perception of bullying, employers need to ensure that they: 

  • Provide clear instructions, information and training to all employees;
  • Establish that employees are aware of and understand the business' performance and disciplinary policies and procedures;
  • Take management action that is justified and follow a process that is procedurally fair and consistent;
  • Provide timely feedback to staff when the issues arise
  • Document all performance matters and disciplinary steps clearly. 

Even though the process is designed to be cooperative and consultative, employees may still object to performance management and complain that they are being bullied, victimised or harassed.

The Commonwealth at section 789FD Fair Work Act 2009, specifically states that an employer is not bullying their staff if they engage in 'reasonable management action carried out in a reasonable manner.'

In practice, reasonable management (as opposed to bullying) means that:

  • A course of action can be considered reasonable from an objective examination even if an individual step in the process is not.
  • Any action taken must be lawful and not 'irrational, absurd or ridiculous'
  • Management should ensure compliance with policies or procedures that are established and already in place. 

Regardless of how aggrieved the employee feels, or how they perceive their employers actions to be intended, a tribunal will consider the reasonableness of the performance management action objectively.  

WHAT IS A REASONABLE MANNER?

What is 'reasonable' is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters. 

This may include consideration of:

  • The particular circumstances of the individual involved
  • Whether anything should have prompted a simple inquiry to uncover further circumstances
  • Whether established policies or procedures were followed, and
  • Whether any investigations were carried out in a timely manner. 

The Role of the performance improvement plan (pip)

When used to its maximum potential, a PIP can: 

  • Identify areas where individual employees are under performing or failing. 
  • Provide suggested methods whereby employees can improve their performance, whether to meet minimum required competency levels or, at the other end of the spectrum, or to assist employees to excel in their roles. 
  • Provide objective evidence in circumstances where an employee's performance is substandard and it is anticipated that their employment may eventually need to be terminated;
  • Help managers and employers observe patterns in employee behaviours and performance to identify factors contributing to poor performance. 

 It is important that PIPs are drafted in accordance with the organisation's workplace behaviour management policy. 

Managers should take the time to:

  • Determine the specific root cause of the poor performance;
  • Communicate with the employee in an open, clear and practical manner;
  • Focus on the problem, not the person; and
  • Set goals in consultation with the employee so that the employee knows what the specific concerns are and how to improve their performance. 

tHE three golden rules for employers

To guard against the increased risk of performance management bullying complaints, employers seeking to implement a performance management regime must ensure that:

1. Each employee has a clear, logical, objective and easily accessible position description according to which they can be measured (and self-measure). 

2. The employer's desired improvement outcomes are objective, have been explained to the employee, and are clearly understood. 

3. The employee is provided with employer, and where appropriate, peer support, and guidance to assist them in achieving the desired performance outcomes. 

Following the three golden rules can help employers avoid unfounded claims of workplace bullying when they are improving the effectiveness of their business through performance management procedures. 

Should you require a workplace investigation to determine whether management action has been reasonable or whether it constitutes bullying, contact WISE Workplace