Anti-bullying series 6 – How to minimise risks that a worker will lodge a stop bullying application

The sixth 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 how to minimise the risk that a worker will lodge a stop bullying application.

0:20 – Potential costs relating to F72
2:25 – Majority of claims will be non-genuine
4:04 –Allegations of bullying arise
9:55 – Prevention of bullying training
11:02 – Self management for early intervention
12:38 – Self management for early intervention
14:05 – Complaints handling
15:16 – Complaints handling training
16:57 – Most importantly
18:55 – Genuine bullying cases
20:18 – Genuine bullying cases
21:18 – More information
21:50 – Risk Factors for Consideration
23:17 – How to Mitigate Risks
24:18 – How to Mitigate Risks Cont’d
25:17 – Timeline for Readiness
25:40 – The next steps….
26:12 – Workplace Conflict Resolution

Video Transcript

Welcome to our sixth session in this six part series discussing the new anti-bullying measures in the Fair Work Act. In this webinar we are going to discussed how to minimise the risks that the worker will make a stop bullying application.

0:20 – Potential costs relating to F72

In the last webinar we spoke about the potential costs relating to responding to an F72 application, which is the application a worker can make if they reasonably believe they’re being bullied at work and they’re a worker in a constituently covered business.

We looked at those costs being quite substantial and so I think there is a need for organisations to look at minimising the risks of a worker making an F72 application. Because the amount of money, evident time required to response to F72 application will be, as I said, quite substantial I believe. Then if an order is made to stop the bullying in the workplace there’s going to be costs associated with implementing those orders and there will be fines for breaches of those orders.

If the process taken by the Fair Work Commission substantiates that bullying did occur in the workplace, then there are also possible costs associated with further action that the worker might take. For example a worker may make a workers compensation claim for psychological injury or they could put in untoward negligence and make a common law claim for damages.
When we look at the costs related to responding to F72 application and perhaps some of the consequences that could occur from this anti-bullying measure and the process implemented by the Fair Work Commission, it makes much more sense to invest in the preventative strategies that an organisation can take rather than be reactive to a situation later on.
This type of investment by putting resources into preventative strategies is going to provide many more benefits to every worker as well as the business rather than the business just trying to minimise the cost and the fallout from responding to an F72 application.

2:25 – Majority of claims will be non-genuine

I do believe, that the majority of claims made through the F72 process will be non-genuine and that is because at the moment a number of different organisations including our own are seeing about 80-85% of bullying claims unsubstantiated. We know that the majority of claims for bullying that are made are not genuine. The worker maybe believed they’re genuine, they genuinely feel aggrieved but they’re not bullying. The allegations of bullying are not substantiated. And so I asked, does your organisation want to be spending time and money in defending or fighting non genuine claims?
We do know that all claims when they’re made have to be taken as being genuine from the beginning until they’re investigated and their outcomes determined from that investigation. And so even though we know that approximately 80-85% of bullying claims will end up not being genuine, they still have to be treated seriously and there still has to be time taken and money invested to investigate and to have documentation ready to present to the Fair Work Commission.

I think this is going to be really frustrating for organisations because they are going to have to put money and time into conducting an investigation, coming out with outcomes, and going through the Fair Work Commission process when a worker has put in F72 application. And I ask, do you want to spend time putting out the fire or cutting the long grass that fuels that fire? Where will you put your resources and investment into?

4:04 –Allegations of bullying arise:

We do know that there are genuine and non-genuine complaints and bullying in the workplace is not appropriate, it is completely unreasonable and it must be addressed. However, not all allegations of bullying are substantiated. Where are these allegations of bullying coming from? I think that they’re coming from these main areas: That we are seeing a lack of constructive and frequent communication and conversation between peers and between managers and their staff. We are seeing the escalation of interpersonal conflict. It’s not being addressed and resolved promptly or appropriately. Managers aren’t addressing inappropriate behaviours. There are some types of hidden power play and agendas going on that are not being noticed, that are not being addressed. We do have competitive individuals in the workplaces that are competitive and we do have a number of competitive environments in our workplaces. And so you put these two factors together and we are more likely to see allegations of bullying arising in those environments. We do know that there are some percentages of people within our working environments who we might term as high conflict persons or high demand employees and their behaviour and actions will be perceived as bullying and could very well be substantiated as bullying.

5:31 – Allegations of bullying arise:

These allegations of bullying are arising because there is a very big lack of understanding of the term bullying. It’s not just enough for an organisation to tell a worker that bullying is repeated unreasonable behaviour that creates a risks to health and safety. It needs to be translated into practical terms for every worker. In training, in terms of trying to understand what is bullying and what’s not bullying? There needs to be more than a definition. There needs to be examples of what types have been an inappropriate behaviour would be substantiated or more likely to be substantiated as bullying and what types of an inappropriate behaviour are less likely to be substantiated as bullying, but nonetheless inappropriate.
I think it would be really helpful if we could term another phrase or coined another phrase for a worker feeling aggrieved at work. Because at the moment the only term that workers really know is bullying and they let on to that. Whenever they feel aggrieved they feel like they’re being bullied. I think its time to bring a new term into our vocabulary in the workplaces and let the worker use that as their complaint. Of course it still has to be addressed but if its not bullying, its not bullying. What else is it? What support and what help can we give to our workers by giving them another name, another label that they can use that will still be addressed seriously and resolved for them, but will minimise the risks and the allegation of bullying going to be made to the Fair Work Commission.

I see allegations of bullying arise when there is unresolved interpersonal conflicts between peers. Very often managers know this is going on, but they don’t have the skills or they’re not prepared to intervene or the peers, the workers themselves don’t have the skills to be able to address the conflict that they’re experiencing. There’s often a lack of rapport between managers and staff member. When the manager does something that the staff members are uncomfortable with or takes the wrong way, they are more likely to perceive it as something negative and more likely to label it as bullying. Sometimes when managers are under stress, they’ve got a lot of work to do, they’re very busy, they can make off the cuff comments which can be perceived as bullying. They may have an aggressive or abrupt management style, very often when an organisation or a manager has unclear expectations of that worker and they make an expectation or put a demand on that worker. Because that has not never been clearly spelled out to them before or perhaps never expected before. Perhaps with the change of management it is now expected, they perceive that behaviour as bullying. Anytime that a decision by management is seen to be non-transparent or biased or have a hidden agenda, workers can feel bullied.

8:21 – Allegations of bullying arise:

I think we’re seeing allegations of bullying in our workplaces because there is a complete lack of detailed conversation going on in our workplaces. Where we don’t have detailed conversations there is a void. There is a misunderstanding or a lack of understanding by a worker and we are not comfortable with that. As humans we will automatically try to fill that void or try to understand that situation, and of course we will do that from our own perspective. For workers feeling uncomfortable, they’re feeling aggrieved, they will fill that void with a negative interpretation. And then there’s a lack of challenging conversations in our workplaces. When a worker has a negative view of the situation because they feel that void or that misunderstanding with their own interpretation, we then have another situation where they again fill that with their own interpretation and the worker continues to grow with their view of this negative workplace. Their views become embedded and that is going to lead to something happening where they say, “I’ve had enough I’m being bullied”. We don’t need to have this challenging conversation where a manager can actually validate. I understand that you might feel that way but then start to look at the situation. Add some objectivity to it, try to expand perspectives, provide more information, and support the worker to say that there’s actually another view point to this situation and that they’ve allowed themselves to take the negative view point and that’s actually… that situation doesn’t exist.

9:55 – Prevention of bullying training

As I spoke about before, the term bullying or understanding just the definition of what bullying is, isn’t enough. There needs to be some really good prevention of bullying training going on in our workplaces. Not just theory and technical terms but examples. There also needs to be a process within that training to test workers knowledge with props and pre-design scenarios. In addition, you could also test their knowledge by letting the worker design or suggest scenarios. We could conduct some role plays to support some understanding as well.

I think our prevention of bullying training could be much more robust, much more thorough, and that is a must. This must be happening in our workplaces to minimise the risks that a worker will put in a stop bullying application. To support this we need to have really good bullying prevention policies and a very good complaints handling process and procedures. I would suggest that part of the complaints handling process is an aspect of self-management.

11:02 – Self management for early intervention

Where is this interpersonal conflict going on their workplaces, we know that left unattended that will escalate and will lead to an allegation of bullying. It’s imperative for staff to train to understand that we all have differences, we all see things differently, we all behave differently, we all have our own personal preferences , and we should actually have some understanding, positive regard and respect for one another rather than highlighting those differences, making negative assumptions about those differences and gossiping about those differences.
Where we allow interpersonal conflict to upset us in the workplace, it’s imperative that a staff member is able to speak up appropriately and constructively in the moment and deal with the issue promptly rather than doing nothing about it or relying on somebody else to solve their issues.

I always recommend the use of a critical friend in a workplace. Somebody that a worker can go to and say, I’m not happy, this has just happened, so, they can do their debrief but instead of their friend actually patting them on their back and saying ‘there’ and keeping them in that place, in that negative viewpoint, the critical friend will actually do that challenging and have that challenging conversation with them to support them to get back above the line again. I would suggest that we need to do some training around below and above the line thinking and how we can support ourselves to get back above the line, and how a critical friend can support us to get back above the line again.

12:38 – Self management for early intervention

I think it’s also important in terms of self-management around interpersonal conflict that our team leaders, supervisors, and managers are trained to be able to coach their team members in self-management. And part of that is being able to use “I” statements that the team leaders, supervisors, or managers themselves are frequently using “I” statements and continually applying self-management to all the situation they’re in so that they are setting the example. These people in our organisations have higher expectations for their own behaviour and instead of others around them, because at the moment team leaders, supervisors, and managers are allowing workers around them to behave inappropriately and they’re not picking it up and they’re not addressing it. One, because perhaps they’re not aware of the behaviours, actions, and comments going on in their teams, and two, perhaps they don’t have the skills to be able to address those issues appropriately. We should be encouraging our team leader, supervisors, and managers to seek support, advice, coaching, and mentoring to address these situations, to manage these situations, rather than just ignoring it and getting on with their busy day to day work, sweeping things under the carpet, etc… Of course it’s going to be highly important that these people in our workplaces document what they have done, what they have said, who they’ve escalated the situation to, because again it may be appropriate to defend an F72 claim.

14:05 – Complaints handling

I mentioned in an earlier webinar that organisations don’t need to have a formal written complaint of bullying to investigate a complaint or an allegation of bullying. Any allegation of bullying, whether it’s been reported by the complainant themselves or somebody that they’ve revealed this to should be investigated and, of course, the investigation must be professional, and thorough, and detailed. Because again it could be used as future evidence in an F72 situation. I also think it’s important to manage complaints thoroughly, investigate them promptly, not just because we now have this extra layer of the possibility that a worker could make an F72 application.

We don’t want our workplaces to be places where people feel aggrieved when they feel bullied. We do need to address these situations for the health and wellbeing of our workers. If we do address matters promptly, word will spread quickly that the management is doing something about situations. There’ll be less gossip. There’ll be better morale and you’ll find that there will be less non-genuine complaints of bullying being made.

15:16 – Complaints handling training

If you are unsure about how to support your workers in complaints handling process then go to our website and download the document there on the blog site called ‘I’m being bullied Critical steps managers must take when they hear this from a staff member’. That will give you a structure and quite a bit of detail to. Pass out those documents to your managers and you can then layer in other steps in line with your complaints handling policy if that’s necessary.

All team leaders, supervisors, and managers should be trained in the prevention of bullying, harassment, discrimination, victimisation. They should know the complaints handling policies and procedure in detail. They should understand the concept of confidentiality and ensure that by themselves and by others, they must be able to document everything thoroughly and continually document through all of these processes. I know it’s time consuming and most people don’t want to do it, but it will be well worth the time taken to do this if you are called to present it at the Fair Work Commission. Please stress to all levels of management within your organisation that documentation is so important. Of course, it’s not just appropriate to address something once; all these layers of management should be encouraged to follow up with parties after they’ve had conversations, after they’ve had meetings, continually check in on people’s understandings about where things are up to. Speaking to somebody once about their inappropriate behaviour is not enough. They need to have follow-up conversations to ensure that they are still on track and they are exhibiting appropriate behaviours.

16:57 – Most importantly

Most importantly I think is that we need a culture in our organisations that inspects, encourages, and allows managers time to have regular communications with their staff.

Managers tell me that they’re too busy to talk with their staff on a regular basis and yet every mediation I do, that is usually one of the most important aspects of the agreement, that they will agree to have a regular conversation, once per week. I’m suggesting that the staff and managers should be having more than once a week conversations with their staff, but a least once a week they should be having a decent conversation with each staff member and managers must be trained to improve in their communication and coaching skills so that they can build rapport with their staff. They can have a better workplace relationship, there’s better understanding, and less likely to be an allegation of bullying. Managers can also be trained to improve their own self-awareness and mindfulness so that they’re more aware of their own behaviours, they’re more aware of the language they’re using, and how they are communicating with their staff verbally and non-verbally.

I think if managers had a greater understanding of their responses and what triggers reactions in them then they’re less likely to react in a workplace and more likely to stay calm and be able to manage situations better for themselves and in any situation where they’re working or dealing with another worker. Managers could also be trained to improve how they give feedback and how regularly they give feedback. They can be trained to improve on the regularity of their contact and in communication with staff, and their ability to empathise with staff. I think where there seems to be most allegations of bullying is that a manager is not able to empathise with the situation. They don’t see it as serious or important. They don’t think they need to address it because they’re not actually seeing the situation from the perspective of the worker who feels aggrieved and, of course, only doing is allowing that worker to stay in that place and become more and more aggrieved.

18:55 – Genuine bullying cases

I know that there are genuine cases of bullying going in the Australian workplaces and so this is a really important area to address. I know that those behaviours range from subtle inappropriate repeated behaviours that the manager just doesn’t address properly and doesn’t monitor and so allows to happen or those behaviours are coming from the manager themselves. We also see everything from those subtle and inappropriate repeated behaviours through to the spectrum of aggressive and abusive behaviours. That is, that the organisation condones or the department manager condones. I say condones because if it wasn’t condoned then the behaviour would be addressed immediately that it happened in the first instance and would be less likely to be repeated which is the definition of bullying.

In my experience, when an allegation of bullying is substantiated, the person whom that allegation is made against can recall and recognise that they had executed the particular action but they have no idea that it would be perceived as bullying. They’re able to justify their actions and that’s why they don’t believe they’ve bullied somebody. They can attribute and blame the situation and the reason why they did something to other external contributing factors because they have a very high external focus of control and a very low ability to empathise with others.

20:18 – Genuine bullying cases

Very often these genuine bullying cases involve somebody who we might call a high conflict person or a high demand employee and they have less ability to regulate their own emotions and behaviour. A high sense of fear or threat and in doing so they react very quickly to protect themselves. They react so quickly that they don’t take time to consider other people or the greater consequences of their actions. They’re less reflective, less self-aware, and less mindful and less able to challenge their own negative assumptions about the situation. For them the negative spiral of the story that builds up for the situation for them is their reality and they’re more likely to react in a bullying way towards somebody else to protect themselves. Because of these behaviours these are the people that managers avoid the most and yet, they’re the very people that managers must be working more closely with.

21:18 – More information

If you’d like more information on high demand employees or high conflict people, visit our website for more information and just type high demand employees into the search window on that website. If you also like to know more about why conflict and bullying happens in the workplaces and the aspect of social pain around those conflict and bullying situations, again visit our website for more information and type ‘is the workplace a business or social enterprise’ and you’ll see a blog come up that will give you more information around that.

21:50 – Risk Factors for Consideration

As a little red flag for you: Here are some risks factors to consider in your organisation? Do you have a new team member coming in to a long standing closeknit team? Do you have a new manager coming in to a team? The other thing to look out for in a long standing closeknit team or apparently closeknit team is that sometimes workers would have given up trying to get issues resolved. There’s quite a lot of underlying resentment going on there and just waiting to erupt. The 1st of January might be a good time. They might perceive that as a good time to allow that eruption to happen and get things off their chest. Anytime there’s a change to roles, new tasks are incorporated, or workloads are increased we have the risk that a bullying allegation will be made. Lack of clarity around roles and reporting lines. I often see dotted reporting lines and they create a lot of confusion and increased the risks of a bullying allegation being made.

I’ve already mentioned unclear expectations around roles, instances of work, and time frames for when work is due. Anytime we have redundancies or there is a shortage of staff and high workload, people are feeling stress, we’re more likely to have an allegation of bullying. Personality clashes will lead to interpersonal conflict allegations of bullying. We’ve discussed competitive individuals and competitive environments and sometimes people will have personal problems that impact on how they’re behaving at work.

23:17 – How to Mitigate Risks

How do you best mitigate these risks? Firstly start off with best practice policies. They won’t stop somebody necessarily from behaving inappropriate but they will provide a very good structure for you to be able to investigate and manage staff against. Our supervisors, team leaders, and managers must be trying to embed people management skills to be able to identify interpersonal conflict and bullying and address it early. They also need to have much more regular and constructive and challenging conversations with their staff. We need managers to be better role models of appropriate behaviour and we need them to have the skills to be able to intervene immediately when they see an inappropriate behaviour. We want our managers to be trained in resolving conflict and in handling complaints and of course we want them to document everything, not just because you may need that for an internal investigation, but because we know they could be alarming F72 application.

24:18 – How to Mitigate Risks Cont’d

It requires everybody, every manager in the organisation to take prompt action on both informal and formal complaints. For everyone to follow the grievance resolution policy properly and fairly. We need to have efficient and thorough investigations. Appropriate disciplinary action needs to come from those investigations as well. Please look at putting in restorative practices to address fractured relationships. Just doing an investigation on its own may not be enough. I’ve found an investigation may or may not substantiate allegations but it really doesn’t lead to any constructive outcomes unless perhaps there is mediation, if it’s appropriate, at the end or some training to occur. Try to be more aware of any systemic issues that could be impacting on the workplace because this will contribute to allegations of bullying.

25:17 – Timeline for Readiness

The 1st of January is only around the corner. In less than two weeks’ time. You may not have time to take all of these steps. However, please try and put them in place no matter how long it does take because every step you take will help to minimise the risk of a worker making an F72 application.

25:40 – The next steps….

The next steps are: Preparation for 1st of January. Develop or update your policies. Train staff. Train Managers. You need to be able to negotiate with your Senior Executives for more resources to be put into this area otherwise they could be spending money in other areas to defend the organisation.

26:12 – Workplace Conflict Resolution

If you need support from Workplace Conflict Resolution we can provide policy review, grievance investigations, mediation, and training. I’ve listed some of the training options here that you might like to consider. However, we always make sure that all training sessions are tailored to the needs of the organisation. If there’s anything in this webinar series that you would like to know more about or you would like to have staff train in. Speak to us and if it’s not listed here on this page we will tailor something to meet the needs of the organisations.

Thank you for joining us in this webinar series and we will look to keep you updated with any outcomes from Fair Work Commission Anti-Bullying Cases as they arise in New Year.

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.