Bullying law update: lessons learnt from high school behaviourOctober 29, 2015
The Informant: Issue 10
Recent decisions indicate that the FWC takes a broad view on what is considered acceptable workplace behaviour. In this month’s Informant we reflect on what has been happening in the bullying space and identify lessons to be learnt from recent decisions.
Exploring the definitional limits of bullying
Recent decisions of the FWC have once again brought the characterisation of workplace bullying into focus with the FWC recently reviewing conduct, typically involving social exclusion and the use of social media, which would be more likely found in a high school rather than a modern professional workplace.
Within these matters the FWC found that:
- a retail employee who had stared at another employee with a hostile look, ignored her ‘hellos’ and ‘good mornings’, and started rumours had engaged in bullying;
- a sales administrator who deleted a property consultant as a Facebook friend after she made complaints about her to their boss, made suggestive comments about the consultant, failed to greet her each morning, ignored her, and refused to perform administrative tasks for her had engaged in bullying; however
- a cleaner who threatened to kill a retail employee because he was sick of cleaning up after him had not engaged in bullying.
While these types of decisions may hold entertainment value, they also highlight three important lessons to be learnt: there is a very real impact of social and professional exclusion in the workplace, the importance of reasonable management practices in all aspects of people management, and the prevalence of bullying across all industries and workplaces.
Social and professional exclusion
The above decisions demonstrate that social or professional exclusion of an employee can in certain circumstances be viewed as bullying. Exclusion may be comprised of basic conduct such as not greeting an employee, ignoring them, or failing to invite them to a social event which other employees are attending, especially if such conduct is repeated or coupled with other similar forms of behaviour. However, what is interesting from these recent decisions is that social and/or professional exclusion may extend to the use of social media such as Facebook, Twitter and Snapchat.
In this respect it is clear that social and professional exclusion is not an appropriate response to workplace conflict, and it is important that businesses of all sizes ensure that they regularly train staff upon socially acceptable behaviour and implement a sound policy framework, including a Social Media Policy, and monitor adherence to those policies.
Reasonable management practices
From recent matters before the FWC it is also clear that a substantial number of bullying claims received by the FWC continue to arise from employees complaining about performance management practices. While reasonable management practice, including performance management, performed in a reasonable way is not viewed as bullying the difficulty arises in the sense that employees are often quick to label it as such. It is therefore vital that employers implement reasonable management procedures to ensure processes such as performance management are undertaken in a clear, transparent and objective fashion.
As an example, in a recent decision involving a major financial institution situated in Sydney, the FWC received a claim from a customer service officer who was participating in a performance management review for failing to follow call answering procedures, working too slowly and breaching the business’ clean desk policy. The FWC held that the employee had not been bullied as there was evidence he had not been held to a higher performance standard than other employees, and the employer was able to support their argument with quality assessments and customer complaints.
This decision demonstrates that while employers are unable to prevent their employees from making bullying claims, the use of reasonable management processes, detailed documentation and procedural consistency are critical to successfully defending such claims. In this respect businesses should ensure that management has the necessary skills, experience and training to handle management processes and display effective people management skills.
Bullying rife among surgeons
We have previously reported that the Royal Australasian College of Surgeons (RACS) had been forced to issue a public statement announcing it had created an expert advisory group to review allegations that it was an ‘Anglo-Saxon old boys’ club which favours men, that “sexism, harassment and bullying are rife among surgeons”, and that those who dared to speak out were punished. The RACS’s expert advisory group have now published a report which among other matters, revealed:
- 49% of all fellows, trainees and international medical graduates in Australia and New Zealand were subjected to bullying, discrimination or harassment;
- 71% of hospitals have reported discrimination, bullying or sexual harassment by a surgeon in the last five years, with bullying the most frequently reported issue; and
- senior surgeons and surgical consultants are reported as being responsible for this behaviour more than any other role.
While the factual background of the allegations is well known due to heavy media coverage, the report from the expert advisory group has surprised many with the prevalence of bullying in such an established and esteemed profession. It is likely, given the accepted direct correlation between bullying and mental illness, many expected more of healthcare professionals who are trained to care for the health of individuals. The report unfortunately confirms that bullying is not limited to male dominated blue collar industries where it has been traditionally prevalent.
Lessons to be learned
- There are a number of important lessons which should be taken from the many decisions made in the relatively short period of the jurisdiction. In particular, employers should:
- frequently engage with their employees on workplace matters, emphasising the importance of recognising and avoiding inappropriate behaviour
- develop an appropriate policy framework and corporate values and enforce the strict observance of these rules
- establish and maintain an appropriate grievance procedure where employees are encouraged to resolve matters at a local level while providing for a more formal review mechanism if justified
- ensure that employees in supervisory roles have the necessary training to manage employees, including leadership, teaching and motivational skills. No one is born a manager, it is a skill set which needs to be nurtured and developed.
Are you facing a bullying issue in your business? Would you like to talk to us about how to manage the situation? Please call us on (02) 9922 5188 or email us at firstname.lastname@example.org.