Q&A: Bullying and underperformance

by HRD05 Dec 2016

HRD chats to Jonathon Hadley, partner at Gadens, about the legal issues relating to bullying and underperformance

Can a disciplinary process be conducted concurrently with a bullying investigation?\
One of the most common issues arising from a performance management process is a complaint of bullying or harassment. The complaint can either be in relation to a person conducting the disciplinary process, or another person within the organisation. Complaints of bullying or harassment will more often arise as a result of the disciplinary process; however, they may also arise shortly beforehand if an employee senses that they may be the subject of an investigation.

In either circumstance, employers are not automatically restricted from proceeding with both processes concurrently. There is no specific legislative requirement which requires the suspension of either process. In some cases, it may be operationally vital that the disciplinary process is undertaken and finalised expediently (for instance, where an employer’s policy requires it).

However, when assessing whether it is appropriate to continue both processes concurrently, employers are encouraged to first consider whether the claim of bullying could be related to, or adversely affect the legitimacy of, the disciplinary process. An example of this may be where the disciplinary process relates to performance issues and the complaint relates to the person responsible for assessing the employee’s performance.
  • How should HR proceed while handling these two processes?
Employers wishing to proceed with both processes concurrently should ensure that the following steps are taken, where appropriate:

(a) Both processes are kept separate and distinct. It is essential that the persons involved in the disciplinary process are not also involved in investigating the complaint. Where HR cannot facilitate this, or where the complaint involves senior management, employers should consider engaging an external resource to investigate the complaint.

(b) Follow internal policies and procedures. Employers should ensure that they follow all internal policies and procedures when undertaking both processes.

(c) A clear and defined process for investigating the complaint is established. Employers should ensure that there is a clear process in place for investigating the complaint.

(d) If possible, remove the subject officer from both processes. It is often the case that the subject of the complaint will be a person intricately involved in the disciplinary process. Where possible, this person should be removed from a decision-making role in the disciplinary process.

(e) Keep clear and comprehensive written evidence of the decision-making process. In addition to further bullying claims, employers also risk a claim under the general protections provisions where disciplinary action has been taken following a complaint of bullying.

COMMENTS

  • by Bernie Althofer 12/12/2016 1:18:55 PM

    Organisations should not be waiting until there is a requirement to investigate complaints or allegations of bullying and harassment that have been raised during the performance management process. The investigation process can be phsically, psychologically and financially costly for all involved, not to mention damage to individual and organisational reputations.

    The level of risk exposure that occurs through performance management process can be substantially reduced by:
    having a well documented policy and procedure;
    providing all those who will be involved in the process with learning and development relevant to their role, accountabilities and responsibilities;
    provide all managers and workers with learning and development relevant to the diverse range of issues associated with bullying and harassment - not just the policy and procedures for preventing, detecting, reporting and resolving;
    conduct periodic audits and/or assessments regarding of understanding and application of various organisational policies.

    Since 1991, I have conducted training in relation to performance management, risk management, workplace bullying and harassment, and whilst a large number of those who attended, managed to apply the policies and procedures in the manner outlined, subsequent inquiries about bullying and harassment have indicated some common themes that have lead individuals to believe they were being bullied. These themes are:

    failure to follow the performance management policy i.e. taking short cuts and applying individual interpretations about how the policy should work
    telling staff to fill out the form and 'drop it back' and then 'we will have a chat (only to have staff wait 3 years for the chat) or (the supervisor making an assessment and giving the completed form back to the individual who then makes a call to inquire about action to take in relation to bullying;
    changing performance assessment criteria without consulting the affected worker and then criticising them for not achieving results or outcomes expected
    telling staff 'don't bother putting in anything for training because there is no money'
    providing two people working together on a project with substantially different 'scores' even though they both made equal contributions
    not allowing an aggrieved person to lodge a grievance about their performance assessment e.g. the policy is written in such a way that 'no grievances will be accepted'.

    It is understandable that managers and workers will be busy working towards outcomes. However, when one considers the amount of angst and concern that can and does arise from performance management processes, it seems that actually following the policy in the way it is intended may reduce the need for investigations. Communication remains a critical part of the process and yet it seems to be the area that both managers and workers struggle with. The process can be time consuming and appear to be bureaucratic, and yet, given the amount of times performance management is raised in relation to disciplinary issues, it seems that proactive organisations will invest in being proactive i.e. ensuring managers and workers are trained, ensuring that time is set aside for the process, and that managers and workers accept that open and transparent communication increases understanding and application. Unfortunately, complaints about unreasonable management actions arise when short cuts are taken, some individuals are treated differently, and some parts of the reward process favour specific personnel, creating a sense of unfairness.

    In terms of investigating matters relating to bullying, investigators do need to read and understand the organisational policy so they can actually plan the investigation. Arranging an interview to start in one hour's time without having read the policy is fraught with risk. Chances are that the person to be interviewed will have already read such policy becuase they are intent on showing that they have 'done nothing wrong'. Asking a support person to provide 'only the salient points' should also be avoided. Experience tells me that some persons accused of workplace bullying, have a depth and breadth of knowledge regarding policies and procedures because they need to know the boundaries. They have operated in this style for a number of years with success knowing that targets will generally not complain officially, even if they do seek advice, support and guidance internally or externally.

    From time to time, I encounter employees who complain that their workplace is toxic, their manager/s is or are incompetent, and no one listens. I have also encountered employees who point the finger and say that the 'complaining employee' has been spoken to about their conduct and performance in front of others. When questioned about issues raised in performance management discussions e.g. their conduct, performance, work concerns, their response has generally been 'it's a waste of time, they don't listen and they won't do anything.' When questioned regarding documentation that might exist, it appears that noting is documented by any of the parties involved so if an investigation is conducted at some time in the future, evidence required to support or dismiss claims will be 'cloudy'. Witnesses may not recall the incident, or they may not wish to be involved.

    Investigations are an important part of the process, and whilst discplinary action may eventuate, it seems that for some organisations, there is a 'greyness' in how the proactive and preventive measures are addressed. Still there are managers and workers in organisations who have over the years been provided with advice, support and guidance and because they have documented minute details, investigations may uncover some embarrassing secrets.

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