The Informant: Issue 4

With an array of different personality types arriving for work each day in stressful work environments around Australia, it is only natural that from time to time some workplaces can experience conflict. Despite the fact that the number of claims within the Fair Work Commission’s bullying jurisdiction aren’t as high as anticipated, it would be wrong to assume that the introduction of the “order to stop bullying” has completely cured bullying in workplaces around the country.

A thriving workplace stems from motivated, loyal and skilled workers paired with good management. As a business owner or manager, it is your role to manage conflict within the workplace to minimise disruption and promote a “healthy and safe” work environment.

Prevention is key

No manager in a professionally run business or organisation sits down and plans to create 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. In short, when it comes to bullying and harassment, businesses would be well advised to do their best to prevent it occurring in the first place.

When the anti-bullying laws were introduced into the Fair Work Act 2009 in January 2014, the social impacts of bullying attracted a great deal of attention, especially in the media. The Fair Work Commission (FWC) expected to be inundated with bullying claims.

To the surprise of many, that didn’t happen. During the period from 1 July 2014 to 30 June 2015, just 694 applications were lodged. To put this number in perspective, it equates to 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 not. 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

Statistics are always useful, but unfortunately they never tell the full story. This is particularly true of bullying. While the statistics from the FWC give the impression that Australian workplace culture is largely free from bullying, this is far from an accurate picture of what is occurring.

So why don’t incidents of bullying in workplaces end up as claims in the FWC?

  • There is a limited range of remedies available; and
  • The strain associated with commencing formal legal proceedings against an employer means that a victim (who often is in a fragile psychological state as a result of the bullying and may have limited financial resources) may decide that it is simply easier and less painful to find another job elsewhere.

Interestingly, despite the absence of the anticipated onslaught of claims as a result of the new bullying jurisdiction, 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 in this area. Many have worked hard over the past two years to identify and resolve bullying and harassment complaints within their workplaces so that these kinds of grievances don’t spill over into external forums, such as the FWC, social media or conventional media.

The effort by businesses to respond to and resolve bullying within the workplace doesn’t come unrewarded – this course of action demonstrates clever strategic thinking and foresight by placings those businesses in a strong position to defeat any bullying claim on their own terms.

Why do businesses put in so much hard work in this area?

They don’t want to find themselves defending a bullying claim in the FWC. Why?

  • The few decisions that have been handed down make cringe worthy reading, exploring, in microscopic detail, the day-to-day happenings within workplaces;
  • Cases require huge volumes of evidence heard over several days; and
  • Most cases are akin to bad reality television in the way they expose the inner workings of a business.

Of course, some decisions address awful – and even extremely nasty – situations, however with quite a few cases, the adverse publicity and brand damage associated with such public exposure is difficult to repair.

Steps businesses can take to prevent bullying and harassment

Since the announcement of the introduction of anti-bullying provisions in the Fair Work Act in mid-2013, we’ve seen a significant number of businesses, of all sizes, take positive steps to prevent bullying and harassment. These include:

  • Taking snapshot samples of their workplace culture to identify any aberrant pockets and to use baseline readings for later cultural analysis.
  • Implementing or improving their bullying and harassment grievance procedures and policies.
  • Reviewing their induction training packages to ensure that workplace values are well known.
  • Training staff, managers and line managers in upholding appropriate workplace values and identifying and eliminating inappropriate behaviours.
  • 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 (which avoids dispute leakage into the FWC), including:
  • Swiftly investigating the claims (via either an informal or formal investigation);
  • Preventing the prospect of any retaliatory action during the course of any investigation; and
  • Providing flexibility in the options available to resolve the dispute, ranging from offers of apology, adjustments to working arrangements and informal mediations, to formal disciplinary action.

Maintaining a positive workplace culture

While there is no doubt that setting up policies and procedures is a vital step in preventing bullying and harassment in the workplace, maintaining a positive workplace culture is an ongoing process. 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.

Workforces are dynamic places, because there is a constant turnover not only of personnel but also of 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 it is structural or social) can transform the way the individuals in a team interact and thus affect the quality of the work being undertaken. A team restructure can have the same effect.

How should businesses respond to these kinds of continual changes and developments?

  • Employers need to reinforce their workplace values constantly.
  • Employers need to create access points so the workforce has an opportunity to express their concerns. Quite often, we talk to businesses that, we find, had no idea there was a problem.
  • Ask yourself, have we created a way for workers to communicate with senior management about issues that are concerning them?