By Matthew Robinson
Bullying and harassment allegations can have an adverse effect on a workforce’s morale and damage a business’s productivity and reputation. But there are strategies businesses can use to protect themselves from claims and foster a healthy workplace culture.
No manager in a professionally run business or organisation deliberately creates a work environment that allows bullying and harassment to thrive. Any competent C-suite executive or people manager knows that a healthy workplace environment attracts skilled, motivated and loyal employees, and that this kind of worker helps to boost productivity and ensure that the business remains competitive.
Bullying and harassment usually take hold in workplaces when there’s a combination of three things:
- A vacuum in business leadership.
- A lack of clear and consistent communication
- A failure to communicate positive workplace values.
When these three things combine, just one or two people within a business can wreck years of positive workplace morale. If bad behaviour is left unchecked for long enough, your workplace culture can turn into a toxic environment of despots, henchmen and fodder. Think William Golding’s Lord of the Flies, but set in your warehouse, workshop or office.
Bullying and harassment can seriously affect victims. It can cause both physical and psychological damage and, in extreme cases, suicide.
 It can also affect a business’s bottom line because it has an impact on productivity, not to mention the terrible waste of resources required to deal with such issues. But potentially more costly is the affect it can have on the reputation of a business, in some cases causing irreparable damage to a brand.
In short, when it comes to bullying and harassment, our best advice is to do your utmost to prevent it occurring in the first place.
Bullying: a new legislative era
When anti-bullying laws were introduced into the Fair Work Act 2009 (Cth) (Fair Work Act) in January 2014, the social impacts of bullying attracted a lot of attention in the media. The Fair Work Commission (FWC) expected to be inundated with bullying claims.
To the surprise of many, that didn’t happen. In the year following the introduction of the new laws, from 1 July 2014 to 30 June 2015, just 694 bullying applications were lodged. To put this number in perspective, it’s a mere 4.7% of the 14,623 unfair dismissal claims lodged over the same period.
Had bullying been cured overnight by the stroke of the legislative pen?
No, of course it hadn’t. As is often the case with any difficult socio-legal issue, the situation is far more complex.
The current situation in relation to workplace bullying
Bullying applications have remained low compared to unfair dismissal applications, hovering at around 5%, year on year, from 2014 to 2019.
But statistics never tell the full story. This is particularly true of bullying. While the statistics from the FWC might give the impression that Australian workplace culture is some sort of bully-free utopia, this isn’t an accurate picture of what’s happening as many instances of bullying don’t end up as claims in the FWC.
There are two main reasons for this:
- There’s a limited range of remedies available.
- The strain associated with starting formal legal proceedings against an employer means that a victim (who’s often in a fragile psychological state as a result of the bullying and may have limited financial resources) might decide that it’s easier and less painful to simply find another job.
Interestingly, despite no onslaught of claims as a result of the new anti-bullying legislation, at FCB Group we’ve seen employees develop an increased awareness of their rights in relation to bullying, especially when being performance managed.
It is also worth noting that the FWC statistics don’t demonstrate the significant work that businesses have undertaken to combat bullying and harassment. Many businesses have worked hard over the past five years to identify and resolve bullying and harassment complaints in-house, so that these kinds of grievances don’t spill over into external forums, such as the FWC, social media or conventional media.
This is a wise course of action that demonstrates the kind of clever strategic thinking and foresight we encourage, as it puts those businesses in a strong position to defeat any bullying claim on their own terms.
Businesses work hard to combat bullying and harassment do so because they don’t want to find themselves defending a bullying claim in the FWC. They understand the damage defending such a claim can do to their business, even if it’s ultimately defeated.
The few decisions that have been handed down by the FWC make for cringeworthy reading as they explore, in microscopic detail, the day-to-day happenings within workplaces. These cases require huge volumes of evidence heard over several days. Of course, some decisions address awful – and even extremely nasty – situations. But most cases are like bad reality TV in the way they expose the inner workings of a business.
The adverse publicity and brand damage associated with such public exposure is often difficult to repair.
Steps you can take to prevent bullying and harassment in your business
Since the anti-bullying provisions were introduced into the Fair Work Act, we’ve seen a lot of businesses, of all sizes, take positive steps to prevent bullying and harassment. Following their example, you should think about:
- Taking snapshot samples of your workplace culture to identify any aberrant pockets. (And consider using these snapshots as a baseline for later cultural analysis.)
- Implementing or improving your bullying and harassment grievance procedures and policies.
- Reviewing your induction training packages to ensure that workplace values are well known.
- Training staff, managers and line managers to uphold appropriate workplace values and identify and eliminate inappropriate behaviour.
- Taking decisive action against any employee found to have breached workplace values.
- Developing processes that capture workplace grievances quickly and advance them within an internal dispute resolution process (that avoids disputes leaking into the FWC), including:
- swiftly investigating any claims (through either a documented informal or formal investigation);
- preventing any chance of retaliatory action by the alleged perpetrator during the course of any investigation; and
- providing flexible options to resolve the dispute, ranging from offers of apology, adjustments to working arrangements and informal mediations, through to formal disciplinary action.
Maintaining a positive workplace culture
While setting up policies and procedures is a vital step in preventing bullying and harassment in the workplace, maintaining a positive workplace culture is ongoing. It’s not a matter of ‘ticking and flicking’ (ticking the box and flicking the document into the nearest file), and then forgetting about the issue.
Workplaces are dynamic because there’s a constant turnover of personnel, along with their personal aims, desires and circumstances. Model employees can become aberrant when their personal circumstances change for the worse or if there are changes in the workplace. A change in leadership (whether structural or social) can transform the way individuals in a team interact, affecting the quality of their work. A team restructure can have the same effect.
With continual change and development in the workplace, how should businesses respond?
Employers need to reinforce their workplace values constantly. In addition, they need to create access points and channels of communication, so the workforce has an opportunity to express their concerns. We often talk to businesses that had no idea they had a problem, simply because they hadn’t bothered to create ways for workers to communicate with senior management about concerning issues.
Using bullying claims as performance protection
With the increased awareness of the bullying laws among the community, many of our clients have had to deal with a situation where an employee has claimed they’ve been bullied in the context of performance management. Such a claim can turn into a workers’ compensation claim, so it’s sensible to have strategies in place to manage the situation and prevent it from getting out of control.
How to prevent a performance management process turning into a bullying claim
Undertaking a performance management process can be stressful for both managers and employees, especially if a manager lacks experience. It’s easy for emotions to become strained, as no employee likes to be told their work isn’t of a satisfactory standard. Nor do most managers enjoy having the difficult conversations with employees that are required from time to time. In the end, both sides may feel under pressure or even stressed.
The situation becomes even more difficult if the manager conducting the performance review is both the decision-maker, and the alleged bully.
In these kinds of scenarios, it’s easy for poor decisions to be made in the heat of the moment.
The most important thing to remember is that all bullying and harassment claims need to be considered objectively and treated dispassionately. Often the best approach is to arrange for a different, independent manager to review the situation.
Ideally, when facing a bullying claim in the context of a performance management process, an employer should be able to rely on the business having a legitimate, established anti-bullying and harassment framework, as well as having undertaken ‘reasonable management actions’ (which is a defence to both bullying claims and workers’ compensation claims).
Types of bullying claims arising from ‘difficult discussions’
Currently, bullying claims arising from ‘difficult discussions’ fall within three different categories:
- The claim is being made legitimately. (The employee has been inappropriately treated by their manager, and this is creating a risk to their psychological health.)
- The claim is being used as a shield to delay the onset of disciplinary action, or is acting as a beachhead for a future adverse action claim if the employee is dismissed.
- The claim is entirely misconceived in that the employer is undertaking ‘reasonable management actions’.
In our experience, the vast majority of bullying complaints fall within the second and third categories. It’s only in rare instances that a complaint is found, after a thorough investigation, to fall within the first category.
Nevertheless, it’s important not to prejudge any bullying complaint. This means that any bullying claim made against one or more managers during any performance management process needs to be treated with the same seriousness as any other bullying complaint.
How to manage a bullying complaint arising from ‘difficult discussions’
For the reasons listed above, we strongly recommend that the situation be reviewed by another manager, a senior manager or, preferably, an independent investigator.
The person investigating should make documented findings as to each of the following:
- Have the targets/benchmarks or standards of behaviour been set ahead of time? Are they in accordance with the business/team aims?
- Has the employee been denied any critical training/information required to undertake their work successfully?
- Are the targets/benchmarks/standards inappropriately skewed across the team, such that the employee concerned is adversely impacted?
- Is there consistent evidence of the manager’s support or coaching of the employee to meet the targets/benchmarks/standards?
- Has the manager been managing the employee in a manner that is inconsistent with the way the rest of the team has been managed? If so, was this done as part of the manager’s support or coaching of the employee?
- Is there clear and verifiable evidence that the targets/benchmarks/standards haven’t been met over a period of time?
- Is the performance management process being conducted within the standard business protocols? Has the process been activated too hastily? Has the employee being given sufficient time to rectify their performance/behavioural failings?
- Is there any need to depart from the standard performance management process due to any known circumstances of the employee (for example, sickness, family tensions or even mental health issues)? If so, does the departure from the standard process assist or hinder the employee?
- Has the employee been warned about possible disciplinary action in the event of continued failings, and if so, is that disciplinary action in proportion to the failings?
The benefits of an independent review
One of the benefits of an independent review is that it allows businesses to identify situations early and commence triage. Ultimately, an independent review should help avoid having claims elevate to the FWC.
How does this work in practice?
If a documented independent review doesn’t substantiate a bullying or harassment claim, then it should discourage the employee from using the complaint as an ongoing delay tactic. It also demonstrates that the business has properly considered and addressed the complaint.
The review report will become an important document should the employee elevate their claim into the FWC or via a workers’ compensation claim. A review report is never a complete fix though. It will also be important to ensure that the ongoing performance management process for the employee continues to sit within the business’s disciplinary framework.
Sometimes it may not be possible to convince an employee, who is struggling in his or her role, that their manager is not the cause of their problems. To put it bluntly, this can be due to the employee’s:
- lack of self-awareness; or
- possible mental illness.
In this kind of situation, it’s important that the business adheres to established procedures unless circumstances dictate otherwise.
While you can’t stop an employee from taking a bullying complaint to the FWC, you should be in a strong position to defeat the claim if you can demonstrate that:
- A sound anti-bullying and harassment framework is deployed within the business;
- Management’s actions are reasonable; and
- An independent process was undertaken to consider and address the bullying claim.
Managing bullying complaints during a performance management process consumes both time and resources. Despite this, it’s important to properly address the claims and not be tempted to cut corners or shove the issue into the ‘too hard’ basket.
Maintaining a strong and positive workforce culture isn’t just about celebrating the positives within the business. It’s also about ensuring that all of your business values are honoured, including having the courage to confront aberrant behaviours and have those difficult discussions.
Matthew Robinson is a partner and solicitor with FCB Workplace Law. He’s an accredited specialist in workplace law in NSW and has been advising clients on industrial relations and employment matters for over fifteen years.
 An example is 19-year-old Brodie Panlock, who committed suicide in 2006 after being subjected to ongoing serious bullying while working at a café. Brodie’s death led to the creation of ‘Brodie’s Law’ in Victoria, which from 2011 made serious bullying a crime.