Workplace Bullying

Changes to the Fair Work legislation came in on January 1 in response to the 2012 House of Representatives inquiry into workplace bullying, locking in the obligation of employers to ensure appropriate measures are in place to reduce or eliminate the risk of workplace bullying and respond to complaints by workers.

Not everyone is happy about the changes. Employer groups and some commentators have expressed concern that bosses will be blamed for minor wrongdoing by employees, or that the FWC will be swamped with vexatious complaints.

Other stakeholders however, such as unions and workers welcome the changes, seeing the new laws as an opportunity to reduce the incidence of  workplace bullying as a significant workplace health and safety problem.

So why have these new laws been brought in and what are the potential risk and benefits to the various stakeholders?

The Productivity Commission has estimated the total cost of workplace bullying in Australia to be between $6 billion and $36 billion a year. The number of bullying complaints to work health safety regulators has been increasing –estimates put forward by the Australian Industry Group are around 5,000 to 6,000 complaints a year are made in New South Wales and Victoria respectively.

The number of bullying-related workers' compensation claims (often for psychological injury) is also rising. Safe Work Australia, according to the AIGroup reported a 70% increase in the number of National workers' compensation claims for bullying over the last three years.

For those of us who work in the industry who attempt to attempt to support the people who are victims - and this doesn’t necessarily just mean managing the target of the bullying  -  there are many complex issues involved in a complaint  and the strategies needed to resolve the underlying problems are often not straight forward.

Firstly, it is not always easy to define what bullying is and is not? According to WORKCOVER NSW, workplace bullying is defined as:

Repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety. Repeated behaviour means that it is persistent, and occurs over a period of time.  Unreasonable behaviour means that a reasonable person, taking into account all the circumstances, would see it as victimising, humiliating, undermining or threatening.

Many practices in the workplace however that may seem unfair, including those that create discomfort for workers, may not constitute bullying.  These include performance management, conflict, personality clashes and differences of opinion, these occur in a lot of workplaces, however they are different to bullying.

According to WORKCOVER NSW, Bullying is NOT:

• Setting performance goals, standards and deadlines   
• Allocating work to a worker        
• Rostering & allocating working hours   
• Transferring a worker   
• Deciding not to select a worker for promotion
• Informing a worker about inappropriate behaviour
• Implementing organisational changes
• Performance management processes
• Constructive feedback

In terms of psychological workers compensation injury claims based on alleged workplace bullying, the processes involved in making a claim and having the claim assessed can be nearly as stressful as the incidents contributing to the bullying. For a claim to be accepted there are two important components to the assessment process:

1. The factual investigation.  The factual investigation is carried out to get the facts about what happened from different perspectives of those involved the alleged bullying.  This is done to assist in the decision the insurer needs to make, about liability.  It is necessary for the victim of the bullying to demonstrate and prove specific incidents took place that constituted bullying. If there is evidence / suggestions that reasonable action was required by the employer over performance management issues the normal obligations for payment of wages and treatment expenses may be refused under reasonable excuse until the claim is fully investigated.
2. The “independent medical “examination is performed by the doctor or mental health professional of the insurer’s choice. It could be a psychologist or psychiatrist - most frequently it is a psychiatrist.  The assessor’s job is twofold. They need to determine whether there is a diagnosable disorder as a result of the alleged bullying and, to determine whether the disorder is a result of what happened at work or due to some other factor such as marital difficulties, or a “pre-existing constitutional disorder”.  If the assessor does not consider that a specific diagnosis is warranted then the claim is likely to be declined. Likewise, if the mental health issue is considered to be due to non-work factors or predominantly the result of non-work issues, even if there is diagnosable illness, the claim will probably be declined.

For the victim of workplace bullying the investigation process can extremely stressful. It may re-traumatise them having to go through the story of what happened again. The effort to respond to a 4 hour factual investigation can be enormous when the victim is clinically depressed.  What they say or don’t say can be critical in the later decision of the employer about acceptance of the claim.

The pressure placed on assessors and decision makers to collect or negate certain evidence and to make decisions one way or another is also significant.  An accepted claim can mean a significant increase in premiums for the employer. It can send a message to other employees that there are problems within the company. It can result in bad publicity.  There will be time lost for the worker who has been bullied and other staff will have to pick up the slack.  The worst-case scenario is that the whole company culture may need to be questioned, and new systems put in place (and sometimes new leaders) to prevent the escalation of the difficulties. All this activity takes time and money.

On the other hand if a worker has been bullied and is injured “psychologically their functioning and life quality will be affected significantly. Anxiety and depression can and usually does effect concentration, decision-making, motivation, attitude and mood.  It can affect morale at the workplace, and the efficiency of a work team. It doesn’t end at work.  A person who has been bullied and is experiencing work induced anxiety is likely to be pre-occupied by what happened and is likely to be experiencing changes in their appetite, sleeping and energy levels. They are likely to be more irritable and or socially withdrawn.  They are less likely to be contributing in the home. In the worse case scenario, bullying victims may attempt suicide if they don’t get the support they need and their mental health deteriorates to the point they don’t believe life is worth living.

Case studies -  Bullying  vs Not Bullying  action

Case study 1: Unreasonable management action that is bullying

Eddie works as a concreter for a building company and works with three other staff. The concreting section has experienced a high staff turnover. Eddie has noticed that his workload continues to increase and has become unmanageable, however the other concreters do not appear to have been given additional work. Eddie’s manager has been criticising him a lot and ignores the fact that Eddie has been working extra hours to finish his jobs. Eddie asks for a performance review, but his manager keeps putting off the meeting, whilst making time for other meetings. Eddie feels anxious and stressed about the way he is being managed, and lodges a formal complaint.

Case study 2: Reasonable management action that is not bullying

John has just been appointed to a management position at a mining company.  He’s been asked to increase profitability, and “shake things up a bit”. Many of John’s team are older long-term workers, and John believes that they have all become a bit too complacent at work. One of his team members, Ian, has been working in the mine for 17 years. He is a union member and is very workplace health safety conscious. John thinks that Ian is too slow on the job, and decides to inform Ian that he is not keeping up with the demands of the job. He explains the impact that this has on the team, and overall profitability. He consults with John to set new performance goals, and rosters Ian on night shifts instead of day shifts, where his slower pace of work will have less impact, and his WHS knowledge will be more important. John organises Ian to attend a performance review in 3 months.