Anti-bullying Series 1 – What is workplace bullying?

The first in our series of online training sessions briefing HR professionals and managers about the upcoming Anti-Bullying Measures to be introduced on January 1 under changes to the Fair Work Act. In this session, we explore what sort of behaviours might be considered bullying under the regulations.

02:52 – Definition of Bullying

03:58 – Repeated & Unreasonable

04:59 – Objective Test

05:51- Risk to health and safety

07:33 – Bullying occurring at work

10:52 – Examples of Bullying

14:45 – Upward Bullying

16:24 – Downward Bullying

Video Transcript

Welcome to this morning’s webinar on What Is Workplace Bullying? We’ll be starting this webinar in approximately 2 minutes and I look forward to you joining us. While you are waiting for the webinar to start, if you would like to be able to ask some questions during the webinar, you might see on your left hand side a question button or a Q&A icon. If you click and enter a question on the right-hand side I will then check this space periodically at least half way through the PowerPoint presentation and again at the end to be able to answer any questions you might have. Standby and we will start the webinar in approximately 2 minutes. Thank You.

Its 11:30 a.m.  Australian Eastern Standard Time and I’m hoping that we have all our attendees with us for this morning’s webinar on What Is Workplace Bullying?

With the introduction of the new provisions in the Fair Work Act for the anti-bullying measures which comes into place on the 1st of January 2014. I thought it might be appropriate for us to explore in a bit more detail some of the concepts that are covered by that legislation to help organisations, especially HR managers, and other managers understand what the Fair Work Commission will be looking at if one of your workers makes a stop bullying application. And so, the biggest concept I supposed for us to consider is What Is Workplace Bullying?

02:52 – Definition of Bullying

The definition of bullying has been gathering a lot of momentum. We see draft guidelines from Safe Work Australia, and also the definition within the Fair Work Act itself. I don’t think it’s unreasonable for this definition to be given. We all know, I think now that bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers. Remember that under the Fair Work Act this provision for anti-bullying measures is applied to worker or group of workers and not employees. The definition of ‘worker’ comes from the Work Health Safety Act.

We also know that for a behavior or an action to be considered bullying there’s an aspect there of ‘repeated behavior’ and also behavior that creates a ‘risk to health and safety’. We will explore these concepts in a little bit more in detail now.

03:58 – Repeated & Unreasonable

For a behavior to be considered bullying it must be repeated and unreasonable. The repeated behavior refers to the persistent nature of the behavior so that it may not necessarily be the same type of behavior that’s repeated but maybe a range of behaviors that has some persistency too over a period of time. The definition ‘repeated’ has not been specified however, it would be reasonable to consider that as soon as one behavior happens more than once, it has been repeated.

The term reasonable often comes under question as I am delivering bullying and harassment training sessions to organisations and it can be quite difficult for some to understand what the term ‘reasonable person’ means. And so applying the reasonable person test is actually the same as applying an ‘objective test’.

04:59 – Objective Test

The ‘objective test’ involves measuring the conduct of the alleged bully to the behaviors or the actions that are alleged to have occurred and then substantiated to have occurred against the conduct of a hypothetical person who we would consider to be reasonable and objective, if they had been placed in similar circumstances. It really does play over this the viewing from perhaps the person who might be quite distant, removed, objective, and not emotionally involved in the situation or time of events.

What this does is removes the alleged state of mind of the bully so that the situation can be viewed objectively, just on the events that have occurred.

05:51- Risk to health and safety

The concept of risks to health and safety is really important because behaviors may be inappropriate but they may not be causing a risk to health and safety, and therefore, by the definition of bullying, being inappropriate behaviors, wouldn’t be considered bullying. Interestingly, for a behavior to create a risk to health and safety it doesn’t mean that behaviors will create a risk or danger to health and safety, or they did create danger to somebody in terms of the health and safety.

All that’s required is that it creates a risk to that person’s health and safety. This has been lifted specifically from a case where a judge conveyed that the word ‘risk’ really means the idea or the possibility of danger. I think that’s an important point to note that, the risk to health and safety means that there is a possibility that somebody’s health and safety maybe damaged, but it doesn’t necessarily mean that the health and safety has been impinged upon.

Very often when I do grievance investigations, the complainant who believes they’re being bullied actually goes to great lengths to try to let the investigator know how the health and safety has been impacted upon and yet it really is an objective test as to whether that behavior does create a risk to health and safety. Not whether it did or not.

07:33 – Bullying occurring at work

For a worker to be able to make a stop bullying application the bullying must have occurred at work. As I mentioned earlier the definition of ‘worker’ is quite broad and has the same meaning as that in the Work Health Safety Act. We had already discussed this in the previous seminar and it’s important for us especially our Victorian attendees today to make sure that they are across this definition of worker because that definition hasn’t been seen in Victorian legislation before.

For bullying to occur at work, firstly we need to consider the definition of bullying which we’ve been over in general terms in the previous slides. Now we need to consider what does ‘at work’ mean? The definition ‘at work ‘is not defined in the Fair Work Act and it’s not defined by the Fair Work Commission either. The Fair Work Commission has looked to other places to try to define what this means. They refer to the Work Health Safety Act which refers to a workplace as where the work activity occurs.

The Work Health Safety Act recognises that the workplace is not just the physical workplace that a worker would attend to each day. There is a broader definition of the workplace being seen under the Work Health Safety Act. Under the Workers Compensation Act, although it doesn’t refer to workplace, the concept of work is always considered when determining its liability is applicable or not. The concept of work is considered to be any activity arising at of or in the course of employment and may include an interlude or interval within an overall period of work.  Although that doesn’t indicate to us where ‘at work’ is, it does link the concept of ‘at work’ with a place where somebody is carrying out their employment duties.

I think this will be important for employers to consider that there are a vast number of places where people complete their work or engage in workplace activities and that may mean that if bullying occurs in those places then the bullying may have occurred at work.  The Fair Work Commission does make a note that being at work does not necessarily imply that the worker was engaged in work activities. So, being at workplace,  a place where workplace activities have been engaged in but perhaps during a break, if bullying occurs then bullying have been considered to have occurred at work.

10:52 – Examples of Bullying

Very often when I am delivering bullying and harassment training sessions, people are very keen to know what would be considered bullying or not bullying. Because there’s a reasonable test involved and the behavior or action needs to be quite succinct, I don’t think it’s that difficult to determine what would be considered bullying if it creates a risk to health and safety. A lot of staff or workers are confused by this concept.

What I’ve done in the next few slides will give us some examples of bullying and we know that bullying can occur from colleague to colleague, or peer to peer, but it will also can occur in what we call upwards bullying from a staff member or worker to a manager, and downward with bullying from a manager to a worker.

I’ll cover off on some of these examples in the last few slides.  It’s important to note that these examples of bullying have actually been taken from previous cases both at courts and tribunals. It would be fair to assume that if these types of behaviors are happening in your workplace then the Fair Work Commission would consider them to be bullying. These last few slides I think would be very important to share with your HR staff and with your managers so that their awareness is raised to be looking out for these sorts of things in the workplace and be able to address them very quickly, promptly. To prevent a worker from being continued to be bullied. To make it known that such behaviors aren’t acceptable in the workplace and to minimise the risks of a stop bullying application being made.  You see from this first slide that’s been up for a while now and these examples of bullying that any;

  • Aggressive and intimidating conduct (including swearing). If it’s repeated and unreasonable might be considered bullying.
  • Any comments which are belittling, humiliating, demeaning, that might be rude, racist, to sexist comments.
  • Victimisation when somebody is on the receiving end of the threat whether its carried out or not because they have put in a complaint or perhaps have a reason to put in a compliant but haven’t or because they have been asked to participate in an investigation or have provided evidence of an investigation.

I always highlight this next point in the training sessions that I run.  For workers to understand that the;

  • Spreading of malicious rumours and we may call it gossip in some circles could be considered bullying and so staff or workers really do need to be careful about the type of conversations that they’re entering into. That they’re not talking about another person in a malicious way or spreading malicious rumors about them. In addition to that, gossip or malicious rumors is one thing but any threats, taunts, or insults on a repeated basis maybe examples of bullying.
  • We are very much aware of some of the practical jokes in initiation ceremonies that we’ve been seeing in workplaces and we probably often get to hear some of the extreme case. I would be asking your managers to be looking out for some of the more subtle practical jokes in initiation ceremonies that are going in workplaces as well.
  • Exclusion from work related events, isolation or segregation. That is leading to the exclusion of work related events or necessary work related information.
  • Pressure from other people to behave in an inappropriate manner.
  • We know that physical and sexual assault are also criminal cases as well.

14:45 – Upward Bullying

The definition of upward bullying is when a worker behaves in a way that would be bullying their manager. This might be seen through a couple of examples of behaviors such as:

  • Not cooperating with other team members or not cooperating with directions by the manager.
  • Obstructing a manager so that tasks or projects aren’t completed.
  • Refusing to accept direction from the manager.
  • Being rude or perhaps being obtuse, which may not be considered rude but might be considered an obstruction to listening to the manager to discussing an issue with the manager, and that may be seen as bullying on the repeated basis.
  • Sometimes managers are subject to either subtle or hostile behaviors in the workplace which indicate that the worker is not going to cooperate with their manager.
  • There have been examples where a manager has been excluded from a meeting that they should be attending.

Very often the manager will not report upward bullying because sometimes it’s considered that, that must be a poor manager if they are not able to manage their staff appropriately and cope with some of these things that they are being subjected to. I think that’s a discussion that HR should be having with all their managers because upward bullying is not appropriate and should be address.

16:24 – Downward Bullying

Downward bullying is perhaps some of the bullying that we hear most often because staff can be very quick to allege that they’re being bullied by their manager. Downward bullying had been recognised by the courts and tribunals. These are some of the behaviors that had been recognised for some of those cases:

  • Managers suggesting, threatening, or requesting that the person resigns.
  • Using demeaning words to describe a worker, or a worker’s work, or work ethic.
  • Inconsistent disciplinary actions. Some managers do need to be careful that they are not favouring staff and that they are consistent with the disciplinary action that they apply to their teams.
  • Making vexatious comments about somebody’s performance.
  • Contacting somebody outside of work hours.
  • Micromanaging and highlighting inconsequential or small errors.
  • Setting work tasks far above or below position description or that worker’s ability.
  • Expecting unreasonable work hours or workloads
  • There have been cases where staff has been placed in disadvantageous office arrangements or rostering.
  • Refusal of carer’s leave on a non-reasonable basis.
  • Not supporting return to work duties in the return to work process.

That concludes today’s session. Thank you for joining us and I hope you can join us on our next session – What is reasonable management action?

About the Author

Catherine Gillespie brings a wealth of skill to her clients. With particular expertise in teaching communication and workplace conflict resolution skills, Catherine has made a marked difference to the organisations she has worked with. She empowers teams and managers to adopt constructive styles that support harmony, productivity and progress in the workplace.

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