Did they cross the line? Dealing with workplace bullying

What one person sees as bullying, another sees as office banter.  This is our guide to identifying bullying and dealing with a workplace bully.

What is workplace bullying?

Fair Work Australia defines workplace bullying as repeated and unreasonable behaviour directed at a worker or worker group that creates a risk to health and safety.

Below are some specific examples of workplace bullying, all taken from real cases:

  • An employee was physically and sexually assaulted, threated and racially and sexually vilified. He was also required to ask his bully for permission to go to the toilet and was unreasonably refused carer’s leave.
  • A manager frightened an employee many times by sneaking up behind him. The manager treated employees like ‘naughty school children’ and humiliated them in front of their peers.
  • A manager directed an employee to take off her necklace in front of co-workers. The manager did not require other employees to remove their jewellery.

Other examples of workplace bullying include behaving aggressively, teasing, pressuring, excluding or making unreasonable work demands.

What isn’t workplace bullying?

The Fair Work Commission requires repeated bullying behaviour to find that there is workplace bullying.  A one-off physical or verbal assault is not bullying.

Even if the behaviour is not bullying, it may constitute another form of behaviour that is inappropriate in your workplace (for example, assault or discrimination).

There is no specific number of incidents required for the conduct to be considered bullying.  In fact, it may be different behaviours which occur over time that make someone a bully.

It is not bullying if you take reasonable disciplinary action against an employee in your role as a supervisor or manager.

How can you avoid bullying behaviour?

In our view, a code of conduct or bullying policy is the best place to start to set a standard of workplace behaviour.

This document should communicate your expectations of behaviour and outline reporting procedures.

Having a written guideline ensures that there is a clear standard that your employees will be held to, and that the standard is applied and enforced consistently.

The guideline document should make the consequences of bullying behaviour clear – either disciplinary action or dismissal.

You should also ensure that the guideline document is reviewed regularly to see if it is effective.

How can you protect your staff from bullies?

An employer has a duty of care to provide a safe workplace, including protecting the physical and mental wellbeing of workers.

An employee can sue their employer for negligence if the employee suffers a physical or mental injury due to bullying caused by the action or inaction of the employer.

The first thing you should do if you believe that an employee’s physical or mental wellbeing is at risk is separate them from the bully.  If this is not possible, create some reporting channels that allow you to monitor and control their interactions.

You should also ensure that there is support and assistance you can offer to employees who feel that they are being or have been bullied.  For example, external sources such as psychologists or counsellors, or internal sources such as a trained human resource staff.  You might also consider offering to cover the costs of an employee arranging their own independent support source.

How should you manage a bullying complaint?

Managing a workplace bully is much like managing an underperforming employee.  It is a confronting task, but ineffective management can make the problem harder to deal with.  You need to be forthright with the employee about their behaviour.  This means discussing their behaviour with them and issuing warnings as appropriate.

We recommend that you take the time to prepare before you meet with the employee.  It is important that you have clearly identified the problem behaviour so that the meeting can be productive.  Ideally, the employee should be made aware of the purpose of the meeting prior, so they can prepare for it.  The employee should have the opportunity to bring along a support person if the meeting is likely to result in disciplinary measures.

The meeting should be in a comfortable and private place, away from distractions.  The employee needs to understand what the problem is, why it is a problem and how it impacts on the workplace.

Stick to the facts and avoid emotion.

The employee should have the chance to respond to the matters raised.  The employee should be invited to suggest ways that they can remedy the behaviour.  At the end of the discussion, send the employee a summary of what you discussed and ask them to add any points you have missed.

If the employee’s behaviour requires a warning, we recommend conveying the warning both verbally and in writing.  Have the employee sign to acknowledge the warning.

In some instances, especially when bullying behaviour is reported sometime after the event, you may need to investigate the reported behaviour.  For example, you may conduct private interviews or obtain confidential statements from staff who witnessed the behaviour.  Many employers involve outside experts to conduct investigations, especially if the complaint is sensitive or is against someone senior.

Need help?

This is a tricky area, and it is advisable that business owners tread carefully.  Otherwise, you can leave yourself open to a claim by either the affected employee or the accused bully.

Call us on 1300 654 590 for advice and assistance in dealing with your employee issues.

Liability limited by a Scheme approved under the Professional Standards Legislation.  Legal practitioners employed by Andreyev (Sydney) Pty Ltd and Andreyev (Adelaide) Pty Ltd are members of the Scheme.

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