Project Description

Workplace Bullying – With Kate Leonard and Lyndal Ryan

Today on the HR Breakfast Club podcast we’re looking at bullying and what that looks like in the workplace. It certainly crops up a lot more in the media these days. We hear about it on social media, we worry about it in the workplace so how does Australian HR law deal with bullies and what do you need to do about it?

Bullying is a serious business in the workplace from everyone’s perspective. Today we’ll discuss how you define it, manage it and ensure that you manage it fairly. Our host, Genevieve Jacobs opens up the discussion with HR specialists, Kate Leonard who is secretary of the AHRI Council in the ACT and Lyndal Ryan, ACT branch secretary for United Voice which represents 120,000 workers nationally.

For more resources, see our HR Breakfast Club resources below. If you have a topic that you would like us to discuss, we would be happy to hear from you, please contact us!

Some topics we cover:

  • What is the definition of bullying in the workplace
  • The legislative framework that exists around bullying in the workplace
  • Different forms that bullying can take
  • How the culture around bullying has shifted, and why we’re now speaking out
  • Assessing any claims of workplace bullying from both sides
  • As an HR manager, you are obligated to take action after claims of bullying, and it’s important that staff are aware of this before disclosing
  • What is acceptable behaviour, and what is not

Genevieve: Hello, welcome to the HR Breakfast Club Podcast, my name is Genevieve Jacobs. Thanks for joining us to focus on the world of work in Australia with a legal spin. Each episode investigates HR issues from the workplace and offers you some approaches to work through them. Our website is hrbreakfastclub.com.au and if you’d like to make contact with some questions, we can respond to those as well and keep you updated on recent developments in the field.

This time around, we’re looking at bullying and asking just what a workplace bullying actually is. It certainly crops up a lot more in the media these days. We hear about it on social media, we worry about it in the workplace so how does Australian HR law deal with bullies and what do you need to do about it?

[music]

Genevieve: Bullying is a serious business in the workplace from everyone’s perspective. Today we’ll discuss how you define it, manage it and ensure that you manage it fairly. With me for the discussion are HR specialists, Kate Leonard who’s secretary of the AHRI Council in the ACT and Lyndal Ryan, ACT branch secretary for United Voice which represents 120,000 workers nationally. Thanks for joining me.

Lyndal: Thank you very much, Genevieve.

Kate: Thank you.

Genevieve: Lyndal, this is a perennial workplace issue but one that’s developed in recent years in terms of scope. Can you tell us what the definition of bullying is in the workplace?

Lyndal: Well, actually it’s a wide range of behaviours that in the end humiliate, intimidate or threaten other workers. It can be a range of behaviours and it can be from manager to worker or it can be worker on worker. There are a couple of different definitions depending on whether you’re looking at safety legislation or whether you’re looking at the Fair Work Act but broadly that’s it.

In fact, in the ACT jurisdiction, it can be anything that doesn’t afford people respect and dignity in the workplace but it must be repeated and must be in the workplace and it’s got to be by an objective assessment about whether that would intimidate or humiliate et cetera.

Genevieve: We might go a little bit more to that objective assessment later but that’s quite a broad test, isn’t it?

Lyndal: It is a broad test and then it has to be balanced against what’s reasonable for performance action on behalf of the employer, what are reasonable directives and so on. It does become quite complicated in that respect but I think there’s nothing like the golden rule in terms of doing [chuckles] unto others. I think sometimes that’s as clear a test as you’re going to get.

Genevieve: Lyndal, what laws governance this? What’s the relevant legislative framework depending on where you are?

Lyndal: Everyone in Australia is captured by the Fair Work Act if they are an employee in the workplace and of course, the safety legislation operating nationally, but it’s state-based but very, very similar across the country now. They’re the two main pieces of legislation but we often find that bullying behaviour can be accompanied by other issues as well so it may be that you’re falling foul of the Discrimination Act as well in relation to your conduct, if it’s poor, unlawful conduct there might be other pieces of legislation that come into play.

Genevieve: Kate, let me bring you in here. What forms can bullying potentially take?

Kate: Well, as Lyndal said, it can take many forms and I suppose as a way to move forward is to give you some examples. Ridiculing somebody who doesn’t speak English, which can fall into that Lyndal said that discrimination as well as bullying, teasing somebody who wears different clothes due to their religious beliefs or even their personal choice. For example, if they want to dress like a goth or a mod, making suggestive comments or insults based on a person’s sex or sexual identity.

Making fun of somebody in a wheelchair or a walking frame or who has mobility problems, putting down somebody who’s obese or too thin, talking about offensive jokes deliberately to put down a particular group or to make somebody feel uncomfortable in the workplace, isolating or excluding an employee from work-related activities, persistent or baseless criticism at work using ridicule, taunts, spreading gossip or just not talking to people in a respectful way or shouting at them. A manager that bellows from their office can fall into that category.

Then again, discriminatory or verbal abuse including offensive language or derogatory remarks about lifestyle choices, what you did on the weekend, your appearance, your ability or other characteristics like your racial background or your religious choices are some examples. As Lyndal pointed out, it’s really broad and it’s contextual. It’s about how you feel as an individual as well as the characteristics that are being demonstrated by the perpetrator.

Genevieve: From both of you, I’m getting the sense that this is now a lot broader than it used to be and so behaviour that might have once been accepted in the workplace is now classified as bullying. I mean, rightly so. I’m not questioning that classification at all but that there’s now a bigger scope in which people have got grounds to take action. Is that right, Lyndal?

Lyndal: That’s right and particularly because changes to the Fair Work Act gave access to the conditions specifically to deal with bullying and that sort of behaviour. I think the other thing that has changed over time is that some types of behaviour were tolerated in some types of workplaces so people have had horrendous stories of initiation ceremonies and that stuff, that actually ended up in the category of assault but started out as cracks if you like and they were tolerated in particular areas, blue-collar areas but no we wouldn’t do that in our workplace.

I think what we’re seeing is that people are saying, “No, not in any workplace.” That’s what we’re seeing as a change. I think some workplaces were culturally more respectful of other people but now employers are realizing, “Well, actually, I’ve got the obligation here and it’s not okay to say, ‘this behaviour is acceptable in male-dominated areas and not accepted in the office,’ now we’re saying is a standard across the board.”‘

Kate: I think as well the changes in WHS and the awareness of psychological illness have also increased. That awareness has also meant that that category has become broader and some of those behaviours that were acceptable in terms of tolerated as opposed to acceptable have now been able to be called out as not appropriate and not just bullying and harassment but actually impacting on people’s health and well being in the workplace.

Genevieve: Kate, what’s not workplace bullying? Talk to me, for example, about reasonable management action.

Kate: In terms of just giving a broad definition in a more legal sense, it’s about behaviours that arise from a relationship of mutual consent that might be considered harassment. I’m Italian and I call myself a wog.

[laughter]

Kate: Some people find that offensive but for me, if somebody calls me a wog, it’s not. There’s no clear cut definition in that space but it’s what people are comfortable with. Moving on from that, in terms of what legally you consider not bullying is about management decisions regarding poor performance, disciplinary action or the direction and control of how workers performed provided it is carried out in a reasonable way, that should not be considered bullying or harassment.

Again to go back to what Lyndal said at the introduction, a single incident won’t be considered bullying or harassment but managers should see that as a potential warning that there is some sort of unsatisfactory behaviour going on in the workplace that needs to be managed. There are sort of examples of what isn’t bullying harassment. Again, it’s a space where it’s contextual. Even if managers are doing it in a respectful way you need to be mindful that it might not feel like daily work thing to the employees. A lot of this is about being mindful of how you manage the process.

Genevieve: Legitimate management matters can sometimes be handled in a way that descends into bullying, there can be a line that’s crossed and perhaps people are not necessarily even aware that what they say is a legitimate action, in fact, may constitute bullying.

Lyndal: Very true and of course we are often seeing that or most often see it from the employee’s perspective. We will get a phone call to say, “Look, I’ve been called into the office and I wasn’t expecting it and I’ve been taken by surprise and I was completely berated, I feel humiliated, I’m in tears now, I need a couple of days off work and I don’t know what to do.” That’s the call we get. The manager, however, might have thought, “It was just a small correction. We just didn’t think it was necessary to call them in and make it formal and get a representative along and I didn’t think what I said was that bad.”

We do get in that space. I think the important thing when we do get in that space is that people continue to listen to each other because if a worker can appreciate their manager’s perspective and the manager appreciate how they have made someone else feel there is some ground. Unfortunately, it can blow into something else, which is very unfortunate for everybody but in an ideal world, you would be able to understand each other’s perspectives and then come to some agreement about how work performance should be dealt with a workplace so that everybody’s clear about that.

Genevieve: Kate, do you think that sometimes bullying allegations that perhaps are not in the end sustained come about because there hasn’t been sufficient attention to workplace culture, to keeping employees up to speed with their progress and expectations and suddenly there’s a confrontation, suddenly there’s something that must be addressed and that is indeed perceived as bullying from time to time?

Kate: I do. I think it’s about often there are difficult conversations that need to have and so there are some times periods when it’s avoided and avoided and avoided and in Lyndal’s situation, it could have been going on for six months. It could have very easily rectified with somebody just going, “No, you should do it like this,” and it’s left and left and left and escalated.

The employer comes in, it’s like a bombshell because they’ve just been doing what they think is right. The manager is at the point of frustration and doesn’t mean to be a bully or harassment but the avoidance of the issue and not having that conversation early can create a situation where somebody does feel bullied and harassed.

Genevieve: Lyndal, what are the risks for an employer if bullying or allegations of bullying are happening in the workplace? What’s the risk to workplace culture?

Lyndal: It’s completely dysfunctional at its worst and it creeps in really quickly. I think even good employees who know that they’ve got obligations to provide a safe workplace, sometimes get caught in not wanting to deal with bullying where the worker, the bully, in this example is seen as a valuable staff member in other ways. If I address this issue of their behaviour, then they might leave me and how would I ever replace them?

Other factors that really shouldn’t be preventing them from dealing with the bullying, creep in. In the meantime, we will find numbers of other people who don’t want to deal with that person, don’t feel that they can ever approach that person about issues. They feel sick and they can’t come to work and all sorts of workarounds can happen that actually change the lines of authority in the workplace because people work around the person that’s causing them grief.

Their level of dysfunction and lack of productivity around that is a real concern for every workplace. In extreme circumstances, we then get into litigation which there’s this financial cost as well as the dysfunction that you’ve been living within your workplace. You then end up in either a claim under the Fair Work Act, a claim under the Health and Safety Act or you could find yourself in a situation where there’s a workers’ compensation claim because the workers are able to establish that their injury was caused in the workplace.

None of which, this is a really great outcome for an employer. Plus, you can lose some really good staff because there will be people who just opt out of that circus after a short period of time.

[music]

Genevieve: You are listening to the HR Breakfast Club Podcast. I’m Genevieve Jacobs and with me today, Lyndal Ryan who’s ACT branch secretary for United Voice and Kate Leonard who’s secretary of the AHRI Council in the ACT. We’re talking about bullying. Kate, an employee comes to you and makes a bullying allegation. What’s your first action from an HR perspective?

Kate: The first thing is to listen. As an HR manager or an adviser, you do need to let them know that we would be obligated to do something once they tell us. If somebody just wants to talk, you can point them in other directions. Go and talk to your employee assistance provider or go and talk to her friend but as an HR professional, you need to make it clear that anything they tell you, whether they want to keep it confidential or not, will require you to take some action.

Now, you need to then give a commitment that wherever possible you will keep it confidential and to assure them that they will be kept informed of the process. I think it is about listening, fully understanding the situation and what’s going on and then getting a clear idea of the players and what’s involved. I think you need to be empathetic regardless of whether you think it falls within the definition of bullying or harassment and understand that this employee’s lived experience is that they feel distressed and it’s impacting on their welfare at work.

I think you need to be really authentic about managing the process and letting them know where you are in the process and explaining to them where to go. It’s really important to point them in the direction of getting some employee assistance or for example, contacting their union representative however they want to go with that. Then, outlining their options that it can be managed informally or it can become a formal grievance. Some of what you do is going to depend on the nature of the allegation.

If it’s that my manager’s yelling at me and I’m feeling really uncomfortable, that’s a very different type of strategy to saying, “I’ve been molested in the filing room,” for example. I think you also need to be mindful of at what stage in the process you’re going to engage. If somebody makes a sexual allegation against somebody else, that’s going to need absolutely immediate attention. Drop everything and put together a strategy that may be sending both of them home until you do the investigation or whatever that looks like.

My preference is wherever possible to keep both people at work because you don’t want to isolate either party or make any allegations. If they work in the same team, finding some alternative way so the two people don’t need to be in the same space but being really mindful that wherever possible trying to keep everybody in the workplace because you can actually then keep an eye on their overall wellbeing and provide intervention day to day even if that’s just checking in how you’re going.

Then, going through the process. Every workplace should have a grievance policy. If you don’t, the Fair Work Act and your awards and enterprise agreements will have them. Also, being mindful of how you’re going to follow the process and diligently working here until you come to an outcome.

Genevieve: Lyndal, Kate’s just described there are exhaustive, thoughtful, balanced HR approach. What support options do workers have?

Lyndal: I was nodding throughout that, that’s the way anyone would want to be treated if you had a complaint you want to be listened to. I really like what Kate said about keeping people in the workplace if that’s possible. In the real world or in some of the places that I’m dealing with is that we have lots of people who are in management positions. There’s no HR department. There are people just trying to run their small business and they very often have come off the floor and they don’t have any expertise in the area.

We represent lots of migrant workers who there’s quite a lot of cultural differences around how people interact with each other and what are perceived as acceptable and what’s not. We have a lot of people who don’t speak English as a first language, so they really struggle to express themselves. Some of the more nuanced conversations that could occur unless you have an interpreter there, they don’t occur and misunderstandings occur.

People think people are being abrupt that actually just don’t have enough language to be more subtle in their expression. These are all the things that we come up against, so sometimes bullying complaints are just ignored completely as if the person hadn’t spoken until the situation is so exacerbated that it’s not possible to retreat the situation. There has to be a part of the company which cannot be reconciled.

Genevieve: On that Kate, we’ve spoken a lot in this episode about people who are victims of bullying, but of course an unsubstantiated bullying allegation can be very stressful for the person against whom it’s made, can’t it?

Kate: Yes. There are extremes of it. They can be the bully who is in a space where I’ve gotten caught and now I’m going to disengage from the responsibility. There are other people who again because they don’t have the skills and the knowledge of how to have difficult conversations or how to engage with people in a culturally diverse workplace that the issues have arisen because of a lack of knowledge and expertise. It can be really hard which is why as the person that’s trying to involve, you need to be authentic and nonjudgmental.

You need to go through the process and come out at the end with a set of recommendations and by being more authentic, hopefully, the parties involved will understand how you got there. When I do this, it’s about recommendations of how to move forward. As Lyndal said, sometimes it’s just impossible because it’s lingered so long and that means that there is a complexity.

It’s not just an allegation of bullying and harassment. There will be mental welfare and distrust and hurt. You’re actually dealing with a far more complex problem. As the HR practitioner or anybody managing that space, you really need to be mindful that you’re not making judgements, you’re just trying to get the facts and understand where people are coming from and that it’s not just about the allegation but is about the wellbeing and the lived experience of all parties.

It’s about practising mindfulness and really listening to what’s going on and not just somebody yelled at me. How does that make you feel? Why, is it a power imbalance? Is it misunderstandings? It’s hard for all parties and I think in the strategy you’re going forward, you’re trying to resolve that and where possible get good outcomes for everybody.

Genevieve: Lyndal, what are the remedies for bullying? If it doesn’t work to resolve it in the workplace but it ends up say, at the Fair Work Commission. There have been, for example, very few stop bullying orders handed down by the commissioner.

Lyndal: Look, I think it’s an area that still needs to be further refined and addressed. Often when we’re looking at options for remedies, we’ll be looking at the whole context of the thing. As I mentioned before, it’s often involving something else and so sometimes it’s preferable to look at the issues which may be related to discrimination.

It may be that only ever that women are yelled at and you might be looking at that as a way of getting a remedy because of the particular conciliation style and the particular approach. There are different options that we might be advising members to, but of course, will be advising people to try and fix it with their employer first, whatever else comes after that, if you can get it early enough, and if it’s not such a tangled web by the time that you just cannot untangle it anymore, but if you can get it early, then you’ve got some hype of getting people to listen to each other and understand each other’s perspectives.

We deal with issues of bullying of a member on member or worker on worker, that happens as well. If you’ve got an employee who’s willing to work with you on those issues, you can get an outcome early. It’s just about people understanding each other’s perspectives and styles and you can get there but if you can’t, you can use the Human Rights Office if it’s got those other elements to it.

The Fair Work Commission who will conciliate and arbitrate it but very few orders which might be an indication of success rather than failure actually, or you can take a matter under the Health & Safety Act. You may have a safety committee that can refund some bullies and there may be some other avenues that you can explore at the workplace but again, some people end up in workers compensation as well because by the time anything gets done about it, they have really suffered a serious injury which is compensatable under the Workers Compensation Act.

Genevieve: Lyndal, just finally from you. What are the risks for employers if they’re not compliant with the legislative framework and a bullying allegation is sustained? I mean, worst-case scenario, this can be damaging, not only for integrity, for reputation, it’s a very potentially destructive situation, isn’t it?

Lyndal: Yes, it is. It’s not something that any employer would like to be at the headline for bullying and allegation being sustained. There is quite a reputational risk if these things proceed, and you have a filing against you, but also the distraction of all of that on the way. The gathering of all the evidence of people that might have been involved in that story. The costs incurred in litigation if you attempted to defend an allegation of bullying. It’s not a happy thing for the employers either. It’s a miserable place for workers to be in and so you mentioned getting ahead of the game.

For example, one of the things that we’ve been able to do collectively with a group of employers in the cleaning industry is to have those managers and those workers meet to develop their own performance code, if you like, to deal with work performance issues because actually, workers want other workers to be performing well because it actually impacts on their experience of work if they don’t, everybody has an interest in that so we asked the managers to develop it with the view that if you had made a mistake as a manager, how would you like to be dealt with?

Because we’re going to write this policy and we would say that we think it should be equally applied across the board so what would it look like? And went through that exercise with a very diverse group of workers and managers, and the fact that we will own that now means that it’s much more likely to be successful and I would say, if you’re developing codes of conduct, going through that process with everybody so that you can really get down into the weeds about, you can deal with those questions.

The one that always comes up is, “Can I ever tell a joke anymore?” Those sorts of things to be, I would really explore what’s okay, what isn’t, and develop your codes collaboratively actually means that you’re just less likely to have incidents of it.

Genevieve: What a fantastically informative conversation. Thank you so much, Kate Leonard and Lyndal Ryan, great to have you with us and thanks for your time too. I’m Genevieve Jacobs. We’ve been discussing bullying with Lyndal Ryan from United Voice and HR consultant Kate Leonard. 

Look for us online at hrbreakfastclub.com.au. We have a series of conversations with HR people, legal experts about current issues in the HR and employment field. If you’d like to ask some questions, suggest an idea or perhaps offer yourself up as talent for the series we’d love to hear from you.

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