Catherine: Hi I’m Catherine Gillespie, Director of Workplace Conflict Resolution and I’m speaking with Martin Reid, Principal and Head of Litigation for Coulter Roache Lawyers. Thanks for speaking with me Martin.
Martin: It’s my pleasure Catherine.
Catherine: I find that in my work, in conflict in workplaces. Quite a bit of it stems from people feeling aggrieved that they have been bullied by somebody else. I’m not quite sure that employers or employees understand that term very well. What’s been your experienced with them?
Martin: My experience is the same. I find that bullying is becoming a definition that covers just about any kind of conflict within the workplace. Employees are now putting up their hand to say they’ve been bullied when they are being managed by their employer or perhaps they had a run in with one of their fellow employees. Instantly it’s been described as bullying and what is the employer going to do about it?
Catherine: We are saying the concept of any type of conflict or upset being automatically labeled as bullying and the responsibility being put on somebody else to resolve that rather than using my own skills of self-management or conversation.
Catherine: Or the complex handling process. I supposed with the escalation of this type of behavior or thought process. My concern lies around the new provisions in the Fair Work Act, “The Anti-bullying Measure”. I think that’s going to place another layer on to businesses. What do you think is going to happen in that place?
Martin: It’s a question really of let’s wait and see what happens. It’s not clear because it’s non-tested obviously with new legislation. Legislation has been drafted specifically to be fast working and perhaps to be a simple process that doesn’t exist currently. Really, will be a question of let’s wait and see what happens, but the legislation is being draft in a way that allows any allegation of bullying to be dealt with within 14 days, straight to the Fair Work Commission. It could work very well or could actually inflate this notion of; “Somebody spoke to me with a loud voice”. “I’ve been bullied and I’m going to the Fair Work Commission”. We have to wait and see Catherine, it would be very interesting.
Catherine: Okay. Watch this space. What is the definition of bullying then?
Martin: There wasn’t an actual definition of bullying anywhere, a legal definition until it was brought into the Act which is a repeated unreasonable behavior directed towards another employee. What it really means is that there has been somebody who has been singled out for repeated unreasonable behavior. It is not a situation where there has been a once-off ‘I’ve yelled at an employee’ or where there has been somebody who is being performance managed. There is a direct exclusion from that in the definition of the act. The employee must have been subjected to repeated unreasonable behavior.
Catherine: Okay, so we got the element of repeated, unreasonable, and sometimes when somebody is feeling like they’re being bullied. I have seen that their emotional perspective on that. They do think that the behavior they’re being subjected to is quite unreasonable and that may not stand up. Is that matter is being investigated? Or it does go to the Fair Work Commission? That concept of reasonableness, how do we help bring that into a workplace to tend to that environment perhaps?
Martin: Reasonableness is of course a wide concept. As you said what can be reasonable with one person might not be unreasonable to another. I think the best way for an employer to navigate this very difficult area is to have a policy that articulates everybody’s position and everybody’s right. That what they should do when they are bullying, you believe you’ve bullying. And also what is bullying? More important the policy should set out as well, what isn’t bullying? So an employee can understand that perhaps they haven’t been bullied, perhaps there is another avenue here. Something else is happening to me. But if you have a well-structured and a well distributed policy so that everybody understands what their odds are and where to go to complain. That should materialise this idea that you’ve been bullied simply perhaps because you’ve been spoken to with a loud voice.
Catherine: If we’ve got those policies in place, an employee still believes that they’re being bullied, they will, when the provisions coming to place, be able to make an application to the Fair Work Commission for a stop bullying order. How do you see that process working? What could be some of the implications back on the business if an employee does take those steps?
Martin: The implications are quite profound. The policy that the employer has doesn’t work or they don’t have one in the first place. You will find that perhaps the Fair Work Commission will step in an imposed a policy like a procedure at the top of your business. The Fair Work Commission will have the power to say, you must investigate these allegations. You must for example sit everybody down and get a private investigator to come in and look over the allegations that has being made. They can be quite earnest on your business and you don’t want the government authority telling you how to run your business. That is far more practical to have the system in place for yourself in the first place.
Catherine: Yeah. What would be the main advice you would give to people watching this video to be prepared, to minimise the risks that an employee makes an application to the Fair Work Commission?
Martin: I think it’s been quite clear Catherine that if you have well drafted and distributed policy that the Fair Work Commission won’t get involved in your business in that way. If you are the subject of a stop bullying order or application from an employee, the employer can go to the commission and say, “Well here is our policy and here is our procedure and this is how we follow it”. Obviously that’s the most practical thing for an employer to do be to have a well drafted policy that sets out exactly what is bullying and what isn’t. What an employee can do and what the employer’s obligations are for that employee. Should they make an allegation of bullying.
Catherine: With this concept of bullying, if it’s not managed and contained well it could escalate to quite a number of other arenas that will impact on the business and perhaps thinking about mitigating those risks from the beginning rather than trying to tackle them once they arise would be the best way to go.
Martin: That is certainly the best way to go because again even if there was a bully in your midst, if they are bullying one person there is no doubt they’d be bullying more and you will find that unreasonable behaviors spreads throughout the business. You need to take a stand to say we are investigating this because this type of behavior in our business will not be tolerated.
Catherine: Yeah that’s great. I think we both work in that field of bullying. I can see the number of complaints in that area escalating. I think that’s what you are saying as well.
Martin: I am.
Catherine: I think it’s important for employers to really address that issue promptly.
Martin: It is and the introduction of these new provisions of The Fair Work Act will mean that if they don’t take steps immediately. The Fair Work Commission will probably take steps for them.
Catherine: Yeah, which is probably not the place they want to be in.
Martin: That is not the place they want to be.
Catherine: Thanks for that discussion Martin.
Martin: My pleasure Catherine.