Are your employees ganging up on one another?

by Victoria Bruce19 Apr 2016
The argument over what constitutes group bullying has been brought into the legal spotlight after a recent Full Bench decision to throw out an appeal by an employee who alleged he was bullied at work.
In Hammon v Metricon Homes Pty Ltd T/A Metricon Homes and others, a construction site manager was found to be the victim of inappropriate workplace behaviour including a poster likening him to a dwarf, a dare to engage in an arm wrestle and an email threatening to stop his pay.
However, the Fair Work refused to issue stop bullying orders because the inappropriate conduct was committed by various staff members who were not acting “in concert”, which the Commissioner found did not constitute “repeated unreasonable behaviour”.
When the employee tried to appeal his case, the Full Bench found no fault with the FWC’s original decision.  
Employers whose staff members experience mass bullying at work need to step in quickly to investigate and put a stop to the bullying behaviour, or risk costly litigation claims, says McDonald Murholme lawyer, Bianca Mazzarella.
Mazzarella says that for bullying claims to be successful, the inappropriate conduct needs to be repeated behaviour and not an isolated event, and successful group bullying claims need to show that the staff members in question were complicit in ganging up on a particular individual.
“This case illustrates that individuals who are ganged up on by numerous individuals at work will have little recourse unless the behaviour of each individual concerned is repetitious, according to this decision,” Mazzarella told HC Online.
In this case, the bullying claim failed as the Commissioner found that the bullying claim was not repetitious and the incidents were not unreasonable behaviour.
“Effectively, Commissioner Roe was not satisfied that the test of ‘repeated unreasonable behaviour while at work’ was met,” Mazzarella says.
“In my view, the issue in this matter is that the Applicant was bullied by numerous people at work, however, the behaviour of specific individuals was not found by the commissioner to be repetitious and was found to be reasonable behaviour.”
Mazzarella defines unreasonable behaviour as “behaviour that goes beyond reasonable management action and is aimed at demoralising the employee which places the employees’ health and safety at risk.”
Mazzarella says the Commissioner was also not satisfied that the four individuals were not acting together to harm the applicant.
“The significance of the Full Bench’s decision is that the law in relation to individuals being protected when bullies act in concert with one another is in my view deficient,” she says.
 Mazzarella says HR professionals and employers need to take bullying seriously and sufficiently investigate complaints and enforce procedures to deal with same to avoid cases like this being litigated.
“The employer should have implemented measures/procedures to ensure that if allegations of bullying were made, they were investigated and dealt with appropriately, including issuing warnings or disciplinary measures where appropriate,” she says.
“The group of individuals concerned should have been addressed and a procedure for the applicant to raise complaints and investigation policies should have been implemented by the employer to ensure the safety of the applicant.”
In Metricon’s case, the employee’s bullying concerns were clearly not addressed adequately or the applicant would not have taken this matter to the Fair Work Commission, Mazzarella says.
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  • by Bernie Althofer 19/04/2016 12:06:48 PM

    Over a period of time, decisions made based on information and evidence presented to various Courts, Commissions and Tribunals have increased the need for organisations to constantly review their policies and procedures relating to the prevention, detection, reporting and resolution of counterproductive workplace behaviours such as bullying and harassment. As those Courts, Commissions and Tribunals place their interpretation of what is meant in relation to various 'tests', individuals may become increasing frustrated with those policies procedures that should be there to help them.

    Unfortunately, in some cases, the time taken for a decision to flow down and across an organisation may mean that an individual will instigate action without realising that a decision has already been made that will have an impact on their action.

    Whilst past contributors to the world of bullying have made detailed comments and observations what types of bullying e.g. gang etc, this decision is a timely reminder for organisations and individuals not to rest on their laurels.

    Breaking down the test into elements may assist in creating an increased understanding of what is required to show the behaviours are actually repeated and unreasonable and at work. Whilst learning and development is offered in various formats, and whilst it appears from some recent discussions that some individuals do complete the L&D requirements of their organisation, they may have very little actual understanding of the complexities.

    Individuals who genuinely and reasonably believe that they have been subjected to or targeted by individuals or even a group of individuals may find that their case would have been greatly assisted with documentation that shows the frequency, severity and action taken, along with evidence of those involved. In some cases, the behaviours used may not fall under some interpretations of what is reasonable behaviour, but may be indicative of a breach of a Code of Conduct e.g. fail to treat someone with respect and dignity.

    In some cases, the apparent disconnect between the people involved and the behaviours being used to target to an individual are not clear. It is only when all behaviours and people involved are subjected to a critical analysis that they can be connected. Those who believe they are being 'ganged up on' should not loose heart with this decision. Instead they should look at ways of showing that the behaviours were unreasonable and that there are patterns involved, with some covert or overt involvement of one or more participants. Collecting relevant information is important.

  • by Dale Wiese (Behaviours at Work) 21/04/2016 5:12:09 PM

    If it were found that the individuals were found to be acting in concert with each other, that as a collective they were specifically targetting the individual, I think it would be more likely that the behaviour would be found to be repetitious.

    To that end, repetitious behaviour should not be confused with unreasonable behaviour. They are two of three distinctly separate elements that need to be satisfied before workplace bullying can be found to have occurred. Behaviour could be repetitious but not unreasonable. Conversely behaviour could be unreasonable, but not repetitious.

    And of course the third element, if the first two are found, is the whether or not that repeated unreasonable conduct created a risk to the individual's health and safety (physical and/or psychological), bearing in mind that risk is simply that - that there is a risk to a person's health and safety. It does not mean that risk has to manifest into an individual actually suffering an illness and/or injury. In this particular matter there was not a need for the FWC to examine this third element given the findings as to the first two elements.

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