Managing a bully in your business
Bullying occurs in workplaces across all industries and it is estimated to cost the economy up to $36 billion annually (Productivity Commission, 2010). Safe Work Australia states that workplace bullying increases employees’ intention to leave and rates of absenteeism, whilst also decreasing employees’ job satisfaction and commitment.
As an employer, you have a primary duty of care to your workers to provide, so far as is reasonably practicable, a safe work environment, ensuring that they are not exposed to risks to their health and safety (see section 19 of the Work Health and Safety Act 2011).
Managing a bully in the workplace can be a complex and stressful experience for management, and often creates tension and unease in the workplace. To maintain a positive and productive workplace culture, it is important that bullying complaints are responded to in a timely, professional, and respectful manner.
When is a worker bullied in the workplace?
Under section 789FD of the Fair Work Act 2009 (Act), a worker is bullied at work if:
an individual or group of individuals;
repeatedly behaves unreasonably towards the worker or group of workers; and
that behaviour creates a risk to health and safety.
Bullying can be carried out by one person or by a group of people. In order to be “repeated” behaviour, the behaviour must occur more than once. The behaviour does not have to be of the same kind, as it can be a range of behaviours. The behaviour must create a risk to health and safety, in other words, the behaviour does not have to result in actual injury, loss or damage.
The Fair Work Commission’s Anti-Bullying Benchbook lists examples of bullying behaviours, which include:
making vexatious allegations against a worker;
aggressive and intimidating behaviour;
belittling or humiliating comments;
exclusion from work-related events; and
unreasonable work expectations.
What is not bullying?
The Fair Work Commission Anti-Bullying Bench Book provides summaries of cases where the Commission held that certain behaviour did not constitute bullying.
Significantly for employers, “reasonable management action carried out in a reasonable manner” is not bullying (see section 789FD(2) of the Act). This is an important exclusion to the definition of bullying as it can be common for employers to receive a bullying complaint by an employee following a performance review issue. To reduce this risk, it is important to follow your business’ performance review policy / procedure. The Fair Work Ombudsman has a helpful guide for managing underperformance (available here).
What to do if a worker makes a bullying complaint?
If you, as an employer, receive a bullying complaint by a worker, whether it be against yourself or a fellow worker, you should follow your workplace bullying policy / procedure to ensure that procedural fairness is given to the parties involved. For example, check that you have all of the required evidence in hand before making any disciplinary decisions against the alleged bully. This is because, in our experience, employees can be (understandably) reluctant to provide written evidence to support allegations of bullying. We also recommend that you:
take the complaint seriously;
promptly respond to the complainant and outline the investigation process that will be followed;
give the person accused of the bullying behaviour a full opportunity to respond to the allegation(s) raised against them;
inform the parties to the complaint of their rights during the investigation process (for example, the right to having a support person present during meetings);
seek external advice from human resources and / or employment lawyers as required, especially if it is likely that disciplinary action is required; and
keep parties informed of the progress of the matter and the outcome of the investigation.
Takeaway message
If not dealt with properly, workplace bullying can affect the whole culture of the workplace. It is your responsibility as the employer to take bullying complaints seriously and to implement your bullying policies and procedures correctly. To minimise the risk of bullying complaints arising from performance management, it is important that you adhere to your performance review policies and procedures, and inform the parties involved in the bullying complaint of the process that will be followed in investigating and resolving the complaint.
Need help?
If you require assistance with managing a bully in your workplace, resolving a workplace bullying complaint, or if you think your bullying or performance review policies / procedures need updating, please do not hesitate to contact us on 02 4929 2000 or at office@jenkinslegal.com.au.
This article is intended to be informational and is not to be taken to be legal advice or to be relied upon. Any person wanting to understand their rights or obligations, or the legal implications relevant to a particular matter, should obtain professional legal advice by contacting Jenkins Legal Services