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What is Bullying?

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Could you identify a bully in your workplace? What is Bullying?

‘Workplace bullying means any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.’

Repeated refers to the persistent or ongoing nature of the behaviour and can refer to a range of different types of behaviour over time.

Systematic refers to having, showing or involving a method or plan. Whether behaviour is systematic or not will depend on an analysis of the circumstances of each individual case with the general guideline in mind.

Risk to health and safety includes the risk to the emotional, mental or physical health of the person(s) in the workplace.

“Bullying” can be serious misconduct, and may, subject to the particular circumstances, be a valid reason for termination. Bullying behaviour can be obvious and aggressive.

Examples could include:

  • Abusive, insulting or offensive language;
  • Behaviour or language that frightens, humiliates, belittles or degrades;Teasing or regularly making someone the brunt of practical jokes;
  • Displaying material that is degrading or offending;
  • Spreading gossip, rumours and innuendo of a malicious nature.

NB: Violence, assault and stalking are extreme forms of bullying that constitute a criminal offence. Such behaviour should be reported directly to the police.

Workplace bullying can also be subtle and could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities;
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment;
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism. Covert behaviour that undermines, treats less favourably or disempowers others, is also bullying, for example:
  • Overloading a person with work;
  • Setting timelines that are very difficult to achieve, or constantly changing deadlines;
  • Setting tasks that are unreasonably beyond a person’s ability;
  • Ignoring or isolating a person;
  • Deliberately denying access to information, consultation or resources;
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training.

What Isn’t Bullying

  • Reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline, counsel, retrench or dismiss an employee;
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with an employee’s employment;
  • Reasonable administrative action taken in a reasonable manner by an employer in connection with an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee.

Bullying as Serious Misconduct Justifying Dismissal

In 2008, the Australian Industrial Relations Commission (AIRC) considered whether bullying constituted serious misconduct to justify dismissal in the matter of Karen Sinapi v Coles Supermarkets Australia Pt y Ltd [2008] AIRC 405.

The story …..

Ms Sinapi was a Store Manager at Coles’ Campbellfield and had been employed by Coles in various roles over 24 years. Following an internal investigation, Coles terminated Ms Sinapi’s employment for serious misconduct. Ms Sinapi sought compensation in the AIRC, alleging the termination of her employment was harsh, unjust or unreasonable. Coles argued that Ms Sinapi’s behaviour on several occasions justified dismissal including that she had:

o Used offensive language to a sales representative;
o Adopted a demeaning and belittling attitude towards another employee (Ms Thompson) including, grabbing her ponytail and pulling her towards a store display; and
o Engaged in “flirtatious and inappropriate behaviour” with a subordinate employee on
a number of occasions which was observed by other employees and captured on security video footage.

Ms Sinapi admitted using offensive language but said that she had spoken in an “amiable and jocular manner”. She admitted pulling her colleague’s hair, but claimed that it was “gentle” in nature and that there was “a prevailing mood of jocularity”. Ms Sinapi claimed her behaviour towards the subordinate employee had been consolatory in nature.

The result ……

In rejecting Ms Sinapi’s application, the AIRC commented that any one of the incidents would be sufficient to justify termination of employment, and together, constituted a valid reason for termination. Given Ms Sinapi’s position as Store Manager, the AIRC held that it was reasonable to expect that she would be an exemplar of the behaviour expected of employees. Further, Coles was under an obligation to act where behaviour of an employee breached normal standards of professional courtesy and etiquette and had the potential to damage its reputation, both in the market place and in the community.

Why bullying goes unreported

There are many reasons why workers may not report bullying or cooperate in inquiries. These include:
lack of response by employer;

  • lack of knowledge about bullying behaviours and their effects;
  • uncertainty about the correct procedure or where to seek help;
  • fear of retribution from the bully or bullies;
  • feelings of intimidation or embarrassment;
  • belief that the behaviour is part of the workplace culture;
  • feeling that nothing will change; or
  • feeling that their opportunities for promotion in the organisation or the industry will be affected.
  • Some workers may not be aware that the organisation they work for has established bullying prevention and management procedures and that their reports will be dealt with in a proper manner.

How to prevent bullying

Although primarily a psychological issue, workplace bullying should be managed like any other occupational health and safety hazard. That is, once identified the degree of risk should be assessed and the risk controlled and reviewed to ensure that workplace bullying does not become, or continue to be, a problem within the workplace.

Consider the following:

1) Consult with workers and safety and health representatives

Employers should establish whether bullying exists in their workplaces or whether there is the potential for bullying to occur. Employers may seek the cooperation of workers to identify bullying behaviour. Bullying is more likely to be reported and cooperation achieved if managers, supervisors and other workers have been involved in the process from the beginning.

2) Develop a prevention policy

A bullying prevention policy, developed by employers in consultation with workers and safety and health representatives, should aim to eliminate existing workplace bullying, if any, and prevent it in the future.
The policy should include a bullying prevention policy, directed at promoting principles of decency and mutual respect and combating discrimination in the workplace. The policy can be developed on its own, or may be included in an occupational safety and health policy or code of conduct.

Workers should be aware of policies and the need to follow them in performing their jobs. Preventative measures may involve an organisation-wide response as well as addressing symptoms in a specific area.

3) Provide information and training

Employers should make information on workplace bullying available to all workers, supervisors and managers. If necessary, the information should be provided in languages other than English.
Information on the bullying prevention and management policy should be widely promoted in the organisation through information sessions, staff meetings, newsletters, etc. The policy should be included in the induction package for all new workers.

Workers should also be provided with information on points of contact within the organisation, such as contact officers or grievance officers.

4) Monitor the effectiveness of action taken

The bullying prevention plan should be regularly evaluated to ensure that it remains appropriate and it prevents bullying at the workplace.

Responding to Incidents

Informal resolution process

An informal resolution process aims to ensure that the bullying incident is resolved as quickly as possible. Although an employee has the right to make either a formal or an informal complaint, they should be encouraged to commence with the informal process first, as this can usually achieve a more timely and satisfactory resolution for both parties.
If the informal resolution process fails to provide an agreed outcome then the employee should be told that they could pursue a formal complaint leading to investigation.

Formal investigation process

It is important that employees clearly understand what to expect from making a formal complaint. You may wish to inform employees that:

  • The investigation procedures will adhere to natural justice principles and ensure fairness for all concerned;
  • An investigation will occur as soon as possible after the complaint is received;
  • An impartial person who can carry out the investigation without hindrance will conduct the investigation.

What are your obligations?

Occupational Health, Safety and Welfare

Due to the effect on the safety and health of employees and others at the workplace, bullying is unlawful under the Occupational Safety and Health Act 1984 (WA).

Equal Opportunity

Equal Opportunity Act 1984 (WA) Bullying behaviour can involve elements of discrimination. The types of discrimination covered by West Australian law include disability, race, sex, age, sexuality, pregnancy and marital status. Employees being bullied on any of these grounds can make complaints to the Equal Opportunity Commission, who will attempt to resolve the complaint privately by conciliation. If settlement cannot be reached, cases can be referred to the Equal Opportunity Tribunal for a public hearing and decision.

Worker’s Compensation

Although the Workers Compensation and Injury Management Act 1981 (WA) does not mention bullying specifically, psychiatric disabilities caused by bullying at work, are compensable, if and only if, the employment was a substantial cause of the disability. An employee may make a claim for compensation regarding any compensable injury that arises out of, or in the course of their employment.

Industrial Relations

There is no specific provision in the Industrial Relations Act 1979 (WA) that deals with workplace bullying, however, where an employee is dismissed or forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of that Act.
Where it can be demonstrated that an industrial dispute exists between an employer and employee and all of the necessary requirements of the Act have been met, a notice of industrial dispute can be lodged with the Industrial Relations Commission of Western Australia to seek its assistance to resolve the dispute.

Criminal Law

Workplace bullying may also amount to criminal behaviour in breach of the Criminal Code Act 1913 (WA) various criminal legislation. Examples include assault and unlawful threats.

Sources:
Department of Commerce WA – Code of Practice Violence Aggression and Bullying at Work 2006.
Preventing Bullying in the Workplace – A Practical Guide for Employers, Equal Opportunity Commission of South Australia.
Heidi Fairhall, Lawyer, Blake Dawson, Sydney (case law)

Sexual Harassment – A Workplace Minefield

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What is Sexual Harassment?

Sexual harassment is unwanted and unwelcome behaviour of a sexual nature. State and Federal legislation make it unlawful to sexually harass another person in the workplace. Sexual harassment takes place when a person makes an unwelcome advance, or engages in other unwelcome conduct of a sexual nature in relation to another person in circumstances, where a reasonable observer would have anticipated that the person would be offended, humiliated or intimidated.

Sexual harassment can occur as a result of a single incident or a pattern of behaviour. It can be committed regardless of whether or not the behaviour concerned was intended to cause offence, humiliation or distress. Sexual harassment encompasses a broad range of physical, written or verbal behaviour, which can include, but is not limited to the following:

  • Unwelcome physical contact or attempted physical contact, e.g. kissing, touching (some of which may constitute assault);
  • Insinuations about an individual’s private life;
  • Insults or jokes of a sexual nature;
  • Unwelcome sexual advances, suggestions, innuendoes or requests for sexual favours;
  • Offensive printed material; or
  • Offensive information transmitted electronically, e.g. via email or the internet.

The Law

Employer Found Vicariously Liable – Informal Complaint of Sexual Harassment

In brief

A 2009 decision in the Queensland Anti-Discrimination Tribunal further highlights an employer’s responsibility to act on complaints of sexual harassment, even if the complainant asks for no action to be taken.

How does it affect you?

Employers should confirm, as part of a thorough EEO training program, that they have a responsibility to act on any complaint of harassment or discrimination in the workplace that is brought to their attention.

This responsibility extends beyond formal complaints and will even arise in circumstances where a complaint is raised in an informal way.

Background

A female sales employee complained that her supervisor repeatedly asked her out on dates, asked her for cuddles and hugs, asked her if she was wearing any underwear, put his hand on her bare leg while she was driving a forklift, and on one occasion kissed her through the open window of a car. Although these complaints were made to a senior manager, the complainant initially declined the senior manager’s offer to speak to the supervisor, claiming that she would handle the matter herself.

The behaviour continued, and the woman eventually made a formal complaint. An investigation largely conducted by the same senior manager ,determined that the complaint was unsubstantiated. The complainant then brought an action in the Queensland Anti-Discrimination Tribunal under the Anti-Discrimination Act 1991 (Qld).

Finding of vicarious liability against the employer

In finding the employer vicariously liable for the sexual harassment, the tribunal noted that: ‘despite the existence of extensive EEO policies, the employer had failed to ensure ‘that persons employed by it as supervisors fully appreciate that it is their primary responsibility to … provide a work environment free from harassment’; from the moment the first informal complaint had been made to the senior manager, it had become his responsibility ‘to take control of the situation and take the matter further – either to protect the complainant from the [supervisor] or to show that the complainant was a person who makes false complaints against a co-worker the respect to be accorded to the wishes of complainant should be subservient to this overriding responsibility; a the senior manager should have ensured that the complainant’s supervisor could not continue with the alleged behaviour by, for example, physically redeploying the two employees to different parts of the business.

The tribunal ordered the employer, as well as the supervisor, to pay $23,425 in damages and to provide every member of employer’s board of directors with a copy of the decision.

Could you afford to have this happen to you or your organisation??

Previously in the News

David Jones Debacle

By now, it is unlikely that you haven’t come across at least one of the many news reports about the sacking of David Jones CEO, Mark McInnes after admitting he acted inappropriately towards a staff member, in a manner “unbecoming of the high standard of a chief executive officer.”

From news reports, it appears this was not a one-off for McInnes. It’s been reported he would regularly target young employees with gifts and try to sweep them off their feet. He was part of an entrenched ‘boy’s club’ culture at DJs, all the more remarkable for a business with a mainly female workforce that sells to high end female customers. It appears that for McInnes, this incident was just part of a broader pattern of behaviours.

“I’m staring at your t*ts” – Why Sexual Harassment Continues in the Workplace

Sexual harassment goes to a range of issues. First and most obvious is the treatment of women. Sydney Morning Herald reporter, Fenella Souter describes one incident in a law firm where a woman (‘Rebecca’) wanted to advance in the company. To do that she would watch cricket or tennis with the men in the boardroom, swear, talk badly about people, drink with the men and not leave work early. She was ‘one of the boys’. And then came the incident.

At a commemorative dinner recently, she was fixing her collar and caught one of the senior partners staring at her across the table. “Stop staring at my collar”, she chided. “I’m not staring at your collar,” he said. “I’m staring at your tits.” She was taken aback, but not astonished. “There’s a steady stream of comments like that in the firm”, she says.

Usually the women try to ignore it or take it as a joke. “Mostly, the men don’t mean anything by it. They just say the first thing that comes into their heads,” Rebecca explains mildly. Does she ever object? ‘One time I did say something and afterwards I walked into the boardroom and the managing partner said, “Uh-oh, here she comes, the fun police.” It’s like you’re some sort of extremist. I also want to become an equity partner of the firm one day and I worry that they would sit there and say, “Well, you know, Rebecca is a bit of a femo. If we made her a partner, she might start throwing her weight around and saying we have to do everything differently.” So the more I can play the game, the better it is for me. I know that sounds like a complete sell-out.’

Yet even if Rebecca plays the game, her chances of becoming a partner are slim, by the mere but inescapable fact of her gender. While almost 60 per cent of law-school graduates in Australia are female, and a great many are the brightest graduates, only an estimated 16 to 18 per cent of partners in major law firms are women and only three per cent are managing partners or CEOs in top law firms. (This despite the fact that women have formed 50 per cent of graduates for the past 15 years at least.)

If you have encountered any of these, or similar issues in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

Sources:
The Age- http://blogs.theage.com.au/executivestyle/managementline/2010/06/21/sexualharassme.html
Allens Arthur Robinson Publications June 2009 by Senior Associate John Naughton,
The Sydney Morning Herald. Article ‘The Only Way is Up’ by Fenella Souter 1 May 2010

Cyber Bullying in the Workplace

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While the subject of cyber bullying of children and adolescents has begun to be addressed, there has been less attention on cyber bullying in the workplace. Adults in the workplace are not immune to cyber bullying, and it can manifest itself in many different forms.

With the Information and Communication Technology revolution over the last decade, there has been a rapid growth in the number of people interacting using modern technologies, such as the Internet and mobile phones. As of 2010, there are almost 2 billion Internet and mobile phone users worldwide.

This widespread access to modern communication devices has provided an alternative medium for bullies to target their victims. Various terms have been used to describe this new phenomenon including; cyber bullying, electronic bullying, e-bullying, SMS bullying, mobile bullying, online bullying, digital bullying, and Internet bullying.

What is Cyber Bullying?

Remember! – workplace bullying can be defined as … “Repeated, unreasonable or inappropriate behaviour directed towards a worker, that creates a risk to health and safety”

Cyber bullying involves the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others.

Forms of Cyber Bullying

Cyber bullying can be accomplished in many different forms using modern technology. Although cyber bullying is becoming more prevalent in the workplace, but is not only limited to the work environment, some examples include;

E-mails – sending emails containing material of an offensive or inappropriate nature. These may include, but is not limited to, offensive jokes, images or pictures. An unfortunate yet emerging trend, is for the bully to digitally manipulate photos or images of the victim, depicting them in a derogatory or humiliating light.

  • Cyber Stalking – the transmission of messages to intimidate and/or threaten the victim, resulting in that person to have concerns about their personal safety and well being.
  • SMS/Text Messages – threats, harassment, offensive or insulting messages sent to mobile phones, is also a form of cyber bullying. This behaviour becomes more distressing when victims are bombarded with constant text messages, at all hours of the day.
  • Social Networking Sites/Blogs – in some instances, a person may not experience a direct form of cyber bullying, but instead, the bully may leave nasty or offensive comments about the victim on blogs and social networking sites, which can be easily viewed by others.
  • Impersonation – in some instances fake profiles are created by the bully on these social networking sites, where they may post personal details about the victim, or worst still, post malicious lies, gossip and defamatory remarks about the victim.
  • Password Theft – gaining access to the victim’s passwords for their computer logon, email account or other online accounts. The bully can use this to lock the victim out, and/or allow others to hack the account.

Dealing with Cyber Bullying at Work

Firstly, try to resolve the problem with the person directly, if you know their identity. If the bullying persists, report the behaviour to your Manager or Supervisor, and look at what avenues are available to you to persue the matter via your organisations complaints management or grievance procedures. Also inquire as to your organisation’s policies on email and Internet use.

Remember, once you have asked the person to desist from cyber bullying, and it still continues, DO NOT continue to engage the bully by responding to offensive emails or text messages – this is what the bully wants -IGNORE IT!

It is important to report this behaviour, because workplace bullying can have negative consequences for not only the victims, but also bystanders. Victims can have emotional and physical symptoms, it can affect their social and family lives and future career advancements. For those who have to witness the bullying, it affects their moral, it reduces commitment to the organisation, lowers job satisfaction and has negative consequences for teamwork and work relationships.

Case Law
In 2005, a high profile case of cyber bullying in the workplace involved that of former Queensland Chief Magistrate Di Fingleton. She was alleged to have threatened and intimidated a work colleague via a strongly worded email, and was subsequently charged with retaliating against a witness.
Although the High Court unanimously found that Ms Fingleton should never have been brought before a court, because her position entitled her to immunity from prosecution, the case reflects the sort of considerations people need to have when communicating via the Internet, email or mobile phone.

Legislative Changes

Presently in Western Australia, the terms “workplace bullying” or “cyber bullying” are not specifically covered by a single piece of legislation. However, there are a number of Acts by through which workplace bullying complaints can be made.

These are as follows:
o Fair Work Act 2009 (Cth)
o Industrial Relations Act 1979 (WA)
o Occupational Health and Safety Act 1984 (WA)
o Worker’s Compensation and Injury Management Act 1981 (WA)
o Equal Opportunity Act 1984 (WA)

If you have any questions about the impacts of Cyber Bullying in your workplace, please contact one of INVision’s Directors via our website at www.inv.com.au

Sources:
http://www.safeworkers.co.uk/cyber-bullying-work.html
Privitera, C., & Campbell, M.A. (2009). Cyberbullying: The new face of workplace bullying? CyberPsychology and Behavior, 12, 395-400.
http://ezinearticles.com/?Types-of-Cyber-Bullying-and-Examples-of-Cyber-Bullying&id=4614885
http://pre2005.flexiblelearning.net.au/newsandevents/features/featuresjuly05.htm
http://www.theglobalist.com/globalicons/syndication/sample.htm