WORKSHOPBullying or

Performance Management?

The Future of Industrial Relations Conference, 8 – 9 October 2014

Tiffany Healy

Overview• Why are we talking about bullying? • Renewing appreciation for having these laws in place

• Understanding behaviours that constitute:• Bullying

• Reasonable Management Action

• Bullying allegations: managing the practical complexities• Balancing transparency with confidentiality

• Independence and impartiality

• Preventing workplace bullying:• Achieving a respectful workplace culture

Appreciation of Bullying Laws

• Practical context that our workplace bullying laws sit within• Why they are in place

• Dangers with over using the term ‘bullying’ in the workplace

• When bullying does occur in the workplace…

• Brodie Panlock.

• Mr H.

Appreciation of Bullying Laws

‘Workplace bullying is a dynamic and complex phenomenon. Its causes are multifaceted and its impact, varied.’ The effects can be long term and profound, undermining a person’s self-esteem, affecting their productivity and morale. (Standing Committee on Education

and Employment, Parliament of Australia, Workplace Bullying: We just want it to stop (2012), 12.)

• [B]ullying is the key workplace health and safety issue of our time. It can affect anyone in any job, regardless of what task they perform, what kind of people they work with, or of what industry they are part. These issues are not easy and they need to be tackled head on, rather than ignored until they become so unbearable for people that they cannot fact going to work. (Carlo

Caponecchia and Anne Wyatt, Preventing Workplace Bullying: An evidence-based guide for managers and employees, Allen & Unwin, Crows Nest, NSW, 2011,

139.)

Bullying Applications So Far…

Bullying

• Repeated,

• unreasonable behaviour that is intimidating, insulting, offensive, demeaning, abusive, degrading or undermining.

• Behaviour that creates a risk to health & safety.

• There must be evidence of repeated and persistent behaviours/actions that a ‘reasonable person’ would interpret as bullying.

Examples of Workplace Bullying:• Unreasonable, excessive or harsh criticizing

• Yelling, screaming, name calling, abusive / threatening / sarcastic comments, verbal abuse

• Throwing objects, intimidating gestures

• Malicious teasing, practical jokes/pranks

• Deliberate damage of personal property

• Isolation from normal work activities

• Withholding information vital for work

• Ignoring someone, excluding someone

• Unwanted physical contact or violence

• Gossiping, innuendo and Cyber bullying

• Assigning meaningless tasks, changing rosters to inconvenience

Wendy Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915

Manager accused of behaving in the following ways:

• Stand over tactics;

• Instructions are too direct; not inviting input from staff;

• Abrupt, harsh and dictatorial in supervisory duties;

• Would identify mistakes made in the newspaper and bring these mistakes to everyone in the room, including the person responsible by yelling across the room;

Bullying Behaviour?

Wendy Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915

The Commission held:

• They were not satisfied base on evidence presented that Bann bullied or entered into abusive conduct. Bullying requires a course of conduct but there was nothing proven to this extent

• There was no evidence of yelling, or abusive conduct, but great body of evidence adduced of Bann’s management style causing various degrees of concern to those whom she supervised

• Commission pointed out not all personal misconduct which involves stress and tension in the workplace manifests itself as bullying or harassment [114]

Wendy Bann v Sunshine Coast Newspaper Company Pty Ltd [2003] AIRC 915

• [134] Commission said that Bann’s managerial conduct as a supervisor was clearly of a type that was unsettling to staff…due to her abruptness and directness and preoccupation with workplace commands and controls

• but commission also said that this behaviour, whilst sympathetic with employer due to high number of complaints and necessity to take action, was not reasons for summary dismissal under the Act

• employer dealt with Bann’s management style as if it were a performance issue for much of the time – not as misconduct which arose as a result to terminate her

Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)

• Alleged bullying conduct:

• [61] every dealing Mrs Harris has with Ms Maye, Mrs H is aggressive towards Ms M;

• Mrs H constantly belittles Ms M; both in one on one dealings and in front of other team members;

• Negative demeanour displayed. Some mornings when Mrs H comes in, she is already in a bad mood and smallest of things will set her off; will just treat Ms M awfully;

• Screams and swears regularly;

• Behaviour constantly embarrasses and humiliates in front of other staff;

• Shows no respect to Ms M as a team member;

• Constantly dismisses anything Ms M says; is dismissive in general;

• Ms M feels that when she asks a question of Mrs H she is spoken to like she is an idiot and ‘barks’ an answer back

• Feels undermined in front of others constantly; treated with disdain

Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)

Is this behaviour bullying?

The Fair Work Commission said…

Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)

• Commission took into account:

• [64] no contemporaneous documentation of incidents;

• Note-book of incidents was kept, but not tendered in evidence;

• No contemporaneous written record of verbal complaints received as evidence;

• Incidents were 17 months old at the time they were officially dealt with;

• [67] [T]he Commission has to be watchful that particular incidences (especially where the protagonists disagree) are deemed as causing such feelings as being ‘humiliated’, ‘dismissive’, and ‘embarrassing’.

• The Commission also took into account personal circumstances of Mrs H –her husband was in a coma, unable to breathe, unsure whether he would live; and the ultimate death of Mrs H’s husband was deemed as relevant by the Commission, contrary to the employer’s opinion:

• The terminal illness and death of one’s spouse is a significant lifecycle event and is specifically acknowledged in industrial instruments. Besides that, it is

part of the humanity in Human Resources. [82].

Harris v WorkPac Pty Ltd [2013] FWC 4111 (30 July 2013)

• The Commission held:

• [73] whilst the Commission does not and should not endorse the view that ‘anything goes’ at the workplace, it is important not to confirm as bullying and gross misconduct behaviour, as in this case, which is not pursued with any vigour and relates to incidents which occurred some time ago.

• The Commission should guard against creating a workplace environment of excessive sensitivity to every misplaced word or conduct

• The workplace comprises of persons of different ages, workplace experience and personalities – not divine angels

• Employers are required to pursue inappropriate behaviour but need to be mindful that every employee who claims to have been hurt, embarrassed or humiliated does not automatically mean the offending employee is ‘guilty of

bullying’ and ‘gross misconduct’.

Bullying Is Not:

• Reasonable performance management or disciplinary action

• Allocating work in compliance with systems, procedures and abilities

• A single incident

• Non-aggressive conflicts and problems

• Occasional differences of opinion, conflicts and interpersonal problems in working relations

Note:

• Trivial, vexatious, deliberately false complaints may lead to disciplinary action including termination

Reasonable Management Action

Reasonable Management Action• Section 789FD(2) of the Fair Work Act:

• Emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises of three elements:

• The behaviour (being relied upon as bullying conduct) must be management action;

• It must be reasonable for the management action to have been taken; and

• The management action must have been carried out in a manner that is reasonable.

• It is not so much an “exclusion” but a qualification which reinforces that bullying conduct must of itself be unreasonable. Ms SB [2014] FWC 2104 (12 May 2014) [47].

•

Examples of Management Action

• Performance appraisals

• Ongoing meetings to address underperformance

• Counseling or disciplining a worker for misconduct

• Modifying a worker’s duties including by transferring or re-deploying the worker

• Investigating alleged misconduct

• Denying a benefit in relation to their employment

• Refusing an employee permission to return to work due to a medical condition

• NOTE: informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised.

Management Action

• Mostly considered in worker’s compensation matters;

• Approach of courts so far: management action must be more than simply day-to-day operational instructions that are required to perform work every day.

• But the advent of s 789FD(2) in the FWA brings a less stringent threshold to pass, suggesting that a wider meaning may be given to the new provisions.

• New provisions state ‘reasonable management action carried out in a reasonable manner’, but does not address ‘in respect to the employee’s employment, or refer to administrative action.

• The legislature explains through the explanatory memorandum that it intends that everyday actions, which ‘effectively direct

and control the way work is carried out’ to be covered by reasonable management action.

Management Action –Old Approach National Australia Bank Ltd v KRDV (2012) 204 FCR 436.

• A manager was criticised for poor work performance at a regular weekly meeting where other team leaders were also in attendance

• The meetings were scheduled with the purpose of planning and assessing workloads

• Worker claimed she had been singled out and picked on by her manager in front of other colleagues;

• Employer claimed this was reasonable administrative action taken in a reasonable manner in respect of her employment;

• Court held because meeting was scheduled for purposes other than discussing her work performance, the behaviour did not fall within ‘reasonable administrative action.

Management Action –New Approach Mr Tao Sun [2014] FWC 3839 (16 June 2014)

• The applicant alleged two instances of bullying:

• The applicant saw a private email between his direct manager and the GM about himself, suggesting he was ‘not a good fit’ around the time of his performance appraisals; he was then convinced that his performance appraisal weightings were adjusted (first complaint); and

• A meeting was scheduled with his manager and the GM to discuss his role and how he carried it out. The applicant was critical of the GM because he considered the tasks that were expected of him were beyond his skill, capabilities and not included in his position description, hence accusing the GM of bullying (second complaint).

Management Action –New Approach Mr Tao Sun [2014] FWC 3839 (16 June 2014)

• The Commission held:

• [38] There is no evidence for the applicant alleging that his performance appraisal was altered from “meets requirements” to “meets some requirements”;

• [62] It is not sustainable for employees to say that a task is beyond their skill level and if the Employer does not agree, allege that it is workplace bullying. Such a situation would be tantamount to the Commission endorsing a one sided self determining premise as bullying in the workplace.

• Commission commented that because an employee believes they are subject to workplace bullying, that belief does not authorise

the employee to behave in any fashion they think appropriate.

When is Management Action Reasonable?Ms SB [2014] FWC 2104 (12 May 2014)

• The first substantive decision that has dealt with the new anti-bullying provisions outlined in the Fair Work Act;

• Giving employers a wider birth than before;

• FWC demonstrating it will take a pragmatic approach when assessing whether an employer’s response is reasonable;

• This case provides clarity around when management action is reasonable, outlining a test –

• Is the behaviour itself ‘reasonable management action, carried out in a reasonable manner’ – it is not whether the management action itself could have been executed in a more acceptable way.

Ms SB [2014] FWC 2104

Reasonable Management

Action

A course of action may still be ‘reasonable action’ even if particular steps are not –

the overall outcome

Any specific attributes and circumstances of the

situation including the emotional state and

psychological health of the worker involved

Any ‘unreasonableness’ must arise from the actual action in question, rather than the worker’s perception – taking

an objective approach

Consider whether the management action involved a significant departure from

established policies or procedures, and if so, was

this reasonable in the circumstances

At the very least, the action must be lawful and must not

be irrational, absurd or ridiculous.

Management actions do not need to be perfect or ideal to

be considered reasonable

When is Management Action Reasonable?Ferguson and Commonwealth Bank of Australia [2012] AATA 718

• Employer appointed a new manager to a branch that was not performing well.

• This manager engaged in one-to-one meetings with an employee about her performance and standards;

• The employee claimed she had developed depression due to being bullied at work due to her manager’s behaviour being rude and belittling.

• Her claim for compensation was refused and the employer’s defense of ‘reasonable administrative action taken in a reasonable manner in respect of her employment’ was upheld.

When is Management Action Reasonable?Ms SB [2014] FWC 2104 (12 May 2014)

It is likely that employers will be able to readily defend bullying claims, given:

• the very high threshold required to make out a bullying claim; and

• the broad approach and ambit that has been recently taken in characterising reasonable management action executed in a reasonable manner.

Consequences of Bullying

• Impact on personal and work life

• Impact on team work and productivity

• If allegations are substantiated by organisation: discipline ranging from warnings to dismissal

• If allegations are reported to external body and substantiated: face court, pay fines and/or given a jail term

• If sued for damages - ordered to pay for damages suffered

Bullying allegations: managing the practical complexities

• Balancing transparency with confidentiality

• Preserve all parties’ reputations

• ‘standard you walk past = the standard you accept – level of transparency required

• Gives workforce confidence in processes; courage in bringing concerns forward

• Will handle complaint in good faith

Bullying allegations: managing the practical complexities

• Independence and impartiality

• Fair / procedurally sound investigations

• Findings more readily accepted

• Confidence in system

• Both parties will feel supported

Achieving a Respectful Workplace Culture• Know what are appropriate and inappropriate behaviours and

lead by example

• Have zero tolerance for inappropriate behaviour

• Identify inappropriate behaviours and immediately take constructive steps for resolution

• Be accountable for your actions and words

• Be tolerant and respectful of others

• Know your workplace policies

Workplace Conflict Resolution

• 1300 227 901

• enquiries@wpcr.com.au

• www.WorkplaceConflictResolution.com.au