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Radical shake-up of workplace bullying

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HC Online | 16 Jul 2012, 12:00 AM Agree 0
In response to a radical submission put forward by Unions NSW to the federal workplace bullying inquiry , a leading employer advocacy body has claimed that while bullying remains a significant issue, it is being inflated by the unions.
  • Bernie Althofer | 17 Jul 2012, 07:39 AM Agree 0
    Workplace bullying is a complex issue requiring complex solutions. As the various discussions have indicated over the past few years, there is no simple answer. There are complexities that lie in defining bullying.

    In some cases, bullying and harassment are viewed as being the same when there are some considerable differences. However, the lay person might find it acceptable to identify with bullying and harassment as being the same.

    There is little doubt that individuals and workplaces want to see an improved approach to dealing with bullying. There is a combination of management practices, communication practices, and the more litigious type of responses that can be used.

    Allegations involving workplace bullying can involve aspects of recruitment, selection, placement, inductions, performance management and discipline through to workplace toxicity, psychopaths and psychopathic leadership and sociopaths.

    Depending on the circumstances and the circumstances of the allegation, in addition to criminal offences that may have been committed, offences in relation to the following legislation may have been committed:

    • EEO, Human Rights and anti-discrimination laws
    • Racial vilification laws
    • WHS and Worker’s Compensation laws
    • Unfair and constructive dismissal legislation
    • Employment protection and contract law
    • Industrial or workplace relations laws
    • Common law claims for damages, negligence, or duty of care
    • Personal injury law
    • Laws relating to natural justice and procedural fairness
    • Liability (personal and vicarious)
    • Privacy laws
    • Public sector ethics and Codes of Conduct
    • Defamation laws
    • Whistle blowing and public interest disclosure laws

    These laws may have been enacted at a Federal (Commonwealth) level or at a State level.

    The issue seems to be that some individuals and some organisations may not be aware of how these laws can be used, until they engage a legal professional to respond to an allegation. Perhaps there is a greater educative need to ensure that organisations and individuals not only know about these laws, but also how and when they can be used.

    If one reads some of the recent decisions made in various Courts, Commissions and Tribunals, one will see that an ever increasing range of factors are being raised in workplace relations claims, and these in some cases, cover issues such as bullying, performance management, work allocation etc.

    There is of course a concern that additional legislation to deal with workplace bullying will have an impact on reporting. If as some media has reported, some elements of bullying will be a criminal offence, then the rules of evidence will change. In some cases, those who are being targeted may find that the entire criminal justice process only adds to their personal psychological trauma, and become even less inclined to report.

    It might be more beneficial to find out what currently exists in terms of legislation etc and then develop strategies to promote that aspect.
  • Sebastian Harvey | 18 Jul 2012, 01:24 PM Agree 0
    The various definitions of bullying currently include reference to 'unreasonable behaviour that creates a risk to health and safety'. If mental and psychological health are not considered in the 'risk to health and safety' then I wonder what is? Just because people become depressed, anxious or stressed does not in itself mean bullying is occuring. There may be a number of factors contributing to this. It is only if the psychological harm can be related to patterns of unreasonable of behaviour that it can be considered bullying. Workplaces need to define what is reasonable and unreasonable behaviour in their workplaces. This provides for both prevention (through awareness of expectations) and management of issues (through clearer definitions in investigations and resolution).In my training programs I point to the risk of being distracted from your job by repeated unreasonable behaviour of others. People who are not focused on their job have accidents, and are therefore a health and safety risk to themselves and others. It is one of the first questions I would ask someone claiming to be bullied. Even if the behaviour that creating the distraction is reasonable, this risk needs to be managed.
  • Bernie Althofer | 18 Jul 2012, 02:44 PM Agree 0
    I believe that most managers would believe saying to an employee "As a matter of interest, what do you have on next week?" would be reasonable management actions. They would be very surprised to find that a regulatory body may determine this to be unreasonable management.

    As Sebastian has pointed out, there is a need to conduct the investigation to understand what is linked, where and why it is linked, and the relevance or important of each and every aspect identified or reported.
  • J Chan | 18 Jul 2012, 03:56 PM Agree 0
    It is important to understand that workers exposed to workplace bullying suffer adverse health effects. Scandinavian research based on clinical data showed the correct diagnosis for the severe health consequences suffered by workers exposed to workplace bullying should be post-traumatic stress disorder for 95% of individuals exposed to such mis-treatment at work. The result of this research is derived from 2428 individuals exposed to workplace bullying. The ill health associated with PTSD such as anxiety, mistrust, stress, heart palpitations, difficulty in sleeping have been replicated by recent survey studies on workplace bullying. It is therefore well established that workplace bullying results in psychological and mental health damage and will be incorrect to say otherwise.
    While the claim is made about workplace bullying found to be unsubstantiated, there has been no details revealed as to the manner in which such a conclusion was reached. For instance, if those investigating the claims were using an Industrial Relations(IR) framework of the right to direct a worker, the right to hire and fire a worker together with the right to discipline a worker, then, that investigation framework would be based only on IR framework without considering the obligations of the health and safety law. The restrictive framework used to investigate workplace bullying is obviously inappropriate as there are an array of laws that need to be taken into account in order to ensure that the workers right to the proper legal protection are not compromised.
    While workplace bullying could be seen to be complicated by the legal provisions provided under various laws such as anti-dsicrimination, Industrial Relations and tort law, I think that AiGroup’s view that workplace bullying can be dealt with through the workplace health and safety law is valid and can be substantiated via a number of prosecutions under the health and safety law in NSW & Victoria. In a recent interview, the General Manager of the health and safety division of WorkCover NSW indicated that about 5000 complaints were received on workplace bullying. The question is what sort of help were the callers given to ensure that they are able to access the protection of the health and safety law of ensuring that the work environment did not pose a risk to their psychological health and safety?

    I do not think that any one is questioning the employer's right to discipline a worker. Workers want the basic human right of being treated with respect and dignity. Maybe a good start would be to educate managers and co-workers about human emotion so a disciplinary matter could be handled respectfully without attacking the dignity of a person.
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