What to do when performance management leads to a bullying claim

by Contributor19 Feb 2018

Occasionally, an employee will genuinely believe they are being bullied during performance management - which might indeed be the case.

Special counsel Felicity Clarke and senior associate Jillian Howard at Hall & Willcox say the biggest mistake an employer can make in this scenario is terminating the employee.

The second biggest mistake is using the same manager to investigate a bullying claim. The most important thing is not to panic.

Clarke and Howard say it’s essential to consider the following steps:

Separate the performance management from the bullying:
Employers can become overwhelmed because they are now dealing with two things: an underperforming employee; and a bullying investigation.

Employers must realise they can deal with both, but it’s best if they are treated separately.

Assess whether a formal investigation is required:
Investigations almost always result in one or more employees leaving – there must be caution, and a policy and procedure on when to conduct formal investigations.

As part of an initial assessment:

  • Ask, could it amount to bullying if substantiated?
  • Be careful about declaring behaviour as “not bullying” because there are significant risks in getting it wrong.
  • Acknowledge any complaint soon after it comes in; advise the employee an initial assessment is being conducted.

Does the accused bully need to be suspended?
Suspension is a drastic measure not to be taken lightly. Some key questions:

  • Is the alleged misconduct serious enough it could result in dismissal if substantiated? If so, there is safe ground to suspend.
  • Is there a risk the employee will commit further misconduct? This provides safe ground to suspend.
  • Is there a risk the employee will interfere in the investigation? Might they attempt to destroy evidence or influence witnesses? All these factors go towards suspension.
  • In all cases, suspension must be on full pay and for no longer than is necessary to complete the investigation.

Proceeding to investigation:
Some key points before proceeding to investigation:

  • Find the right investigator: The investigator must be as independent as possible to avoid bias allegations; the investigator must be at least as senior as the employee being investigated; and often an external investigator is best.
  • Follow the correct policy: employers with policies and procedures in place for conducting investigations increase their chances of success. If you have a policy and you've followed the process, then you'll be in a more defensible position if a claim is later brought by one of the employees involved.
  • A note on policies: Good policies aren’t too heavy on detailed and prescriptive procedures – as you may later be challenged about not following your own policy. Good policies just cover the basics.
  • Consider legal professional privilege: Employers often funnel all communication through lawyers, who are protected by legal professional privilege, meaning investigation documents and communications cannot be disclosed publicly.

In conclusion:
Employers who avoid making basic mistakes generally have the following in place:

  • Well drafted policies and procedures
  • Clear performance management process
  • Established investigation procedure
  • They follow policies and procedures, and keep a paper trail
  • They show consistency in approach
  • Appoint an appropriate investigator
  • Avoid delay
  • Communicate clearly on process and possible outcomes

Every complaint is different, and every complaint needs to be handled with fresh eyes. There is no one-size-fits-all approach.

Felicity Clarke is a special counsel and Jillian Howard a senior associate at Hall & Wilcox

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COMMENTS

  • by Bernie Althofer 21/02/2018 11:45:43 AM

    Over the years when I was providing advice, guidance and support to targets, alleged bullies and manager/supervisors about the prevention, detection, reporting and resolution of counterproductive behaviours including sexual harassment and bullying, I found that in a number of cases, inquiries focused on management practices and communication.

    Managers and workers at all levels do become busy achieving outcomes, and organisations issue policies and attached procedures prescribing how various policies are to be applied. However, in a large of number of the inquiries directed to me, I found that whilst individuals had a genuine and reasonable belief that the process was being used to bully them or that they would be accused of bullying behaviours, my understanding of the information presented to me, was that there was a lack of understanding of the policy and/or procedure, leading to the genuine or reasonable belief.

    I formed a view that whilst there were various forms of counterproductive behaviours occuring, the risk of them occurring could have been prevented or reduced if managers and workers actually knew the policy and/or procedure. Whilst the points raised in the article are valid, I would suggest that there may be less need for investigation if (and it is a big if), workplace investment is directed towards prevention and detection. In a number or organisations, there may be little to no need to investigate because the foundations have been cemented in place; adverse conflict is handled in a timely manner, and there is open and transparent communication and discussion when it comes to performance management.

    There have been numerous discussions over the past two years relating to performance management i.e. keeping them, scrapping them or having some form dialogue in place when managers and workers can have open and frank discussions. That said, even if an organisation does have a formal and documented process set down in in policy, I would suggest that all managers and workers actually have access to it, and be provided with some form of training or awareness on issues such as application i.e. who is involved, when and how it is used; review processes; relationship with other policies e.g. Codes of Conduct, Discipline, Grievance procedures; bullying/harassment policies etc. Some organisations may have a system or process that encourages and support regular meetings between a manager and a worker, whilst others may electronic systems and processes; or a 'tick and flick' approach may be encouraged. It does not seem that there is universal agreement on what constitutes a good or strong performance management and appraisal system and process.

    However, it does seem that in some cases individuals raise concerns about the wording contained in a performance appraisal document which in turn could lead to conflict as a manager may believe it means one thing, whilst the person whose performance is being appraised, takes it to mean something else. It becomes an issue for organisations when an individual may ask to read the policy and find that there is no such document; and that no training has been conducted.

    Investigations are time consuming and costly for all involved. Organisations need to consider strategies that can be directed towards the prevention and detection of counterproductive behaviours such as bullying, so that the need for investigations can be reduced. Whilst every organisation is different may take different approaches, I would add the following for consideration:

    RESOLVING NEGATIVE WORKPLACE BEHAVIOURS

    Managers and workers should know that they will be involved in a negative workplace behaviours incident – directly or indirectly and they need to plan for that time. There will be a be a barrage of questions from investigators, managers, workers, family and friends. There will be rejection, dejection, objection and persecution and if you are the person making an allegation, you may be seen as rocking the boat and ‘biting’ the hand that feeds you.

    Targets and alleged bullies should know that their personal or organisational reputation will be damaged and the investigation time will be a ‘lonely’ time and you will be on an emotional rollercoaster and you may not get the outcome you want. In some cases you may have to leave your current employment and you will need to find a new sense of ‘normal’. Your moral compass will guide you through the process of making a complaint to resolution.

    MANAGING AND RESPONDING TO RISKS

    Organisations need to have systems and processes in place to Educate, Educate, Educate and this should ensure that managers and workers at all levels understand what is, and what is not, bullying and what standards of conduct are expected in the workplace, along with consequences for non compliance or non conformance. There has to be regulare communication about workplace standards and there has to be consistent application of those standards i.e. no special treatment or exemptions for favourites. Policies need to be refreshed on a regular basis to maintain currency of knowledge.

    Managers and workers at all levels need to Walk the Talk and lead from the top down by thinking about messages of Dignity and Respect – Freedom from Gossip / Rumour. Managers need to empower employees to fully understand their rights and responsibilities at work; understand what is and what is not considered as counterproductive workplace behaviours; feel confident that they may report counterproductive workplace behaviours such as bullying, harassment and unlawful discrimination without fear of recrimination; act promptly and consistently to investigate and respond/ educate; know the signs of counterproductive workplace behaviours e.g. bullying – tearfulness, changes in personality, increase in absenteeism, high turn over.

    It is important not to condone bad behaviour – a little early intervention can go a long way.

    Paper trails are being created by individuals who are documenting counterproductive behaviours and they also document discussions with management about the issues and incidents.

    STRATEGIES – PROACTIVE/PREVENTIVE

    • Set workplace standards

    • Have clearly defined roles and responsibilities

    • Assign mentors

    • Use performance management and discipline processes

    • Provide learning and development opportunities

    • Address workplace conflict immediately

    • Review work systems and processes

    Data management can lead to more effective decision making

    Compensation data support with other data collection methods

    • Time and motion studies
    • Mandatory reporting

    Reporting can lead to good data collection

    • Formal and informal reporting
    • “I have a friend” syndrome

    Defining the topic can result in improved reporting

    • Harmony versus uniformity
    • Need to have explicit definition
    • Action, Reaction, Consequence model

    It is important to manage organisational risks involving people and performance management systems and processes. This could involve conducting effective organisational risk assessments in relation to human factors; ‘at risk’ employees; and involve the use of staff surveys and conduct assessments in relation to business continuity.

    Larger organisations will have dedicated professionals that can provide information in relation to compliance requirements on topics involving HR and Industrial requirements. However smaller organisations may outsource this aspect of business. It is therefore important to understand Government legislation, policies and directives regarding workplace bullying, harassment and unlawful discrimination

    Leadership and management is not easy. Leadership is like pornography – you know it when you see it (Bennis 1997:8). Managing people is like herding cats (Bennis 1997). It has been indicated in other forums that addressing workplace health and safety and in particular bullying, this is a competing interesting so a business case has to be mounted to garner support. However, there is a need to increase the evel of management commitment and support for prevention, detection and resolution of counterproductive workplace behaviours including workplace bullying, harassment and unlawful discrimination. Organisations need to consider the level of ongoing learning opportunities; the amount of feedback on trends and issues, and the linking of workplace violence prevention programs to ethics of values organisation. Organisations may be able to demonstrate a level of commitment by including workplace bullying data in health and safety reporting requirements at board / executive level and encouraging and supporting workers who report positive/negative workplace behaviours e.g. workplace bullying. Organisations can demonstrate commitment by ensuring that allegations (even rumours) are investigated immediately.

    Organisations should consider Including counterproductive workplace behaviours in risk management plans; business continuity plans; crisis management plans; audit plans and corruption prevention plans.

    Executives should provide regular reports to managers on level of counterproductive workplace behaviours e.g. workplace bullying in the workplace

    MANAGEMENT STYLE AND CULTURE

    Encourage appropriate management style and organisational culture by promoting appropriate workplace culture and then have top management demonstrate commitment by focussing on safe working conditions; involvement in management-worker consultation; develop teamwork and a participatory management style to improve communication management and workers; have clearly defined roles and responsibilities including rules for promotion, rewards, performance management; include work health and safety (bullying) as standard agenda item on Board and executive officers meetings.

    It is important to address counterproductive workplace behaviours such as workplace bullying in the following areas: corporate/strategic/operational plans; risk management plan; Training plan; Fraud and corruption prevention plan and the Audit plan.

    PREVENTION, DETECTION, REPORTING AND RESOLUTION

    Promote culture that condemns counterproductive workplace behaviours and recognises it as a potential problem e.g. bullying, harassment, workplace violence

    Provide information on how to identify counterproductive workplace behaviours, risk factors, their effects and how to get additional information , resources

    Conduct risk assessments, staff surveys, stress and workplace audits in relation to negative workplace behaviours such as bullying, harassment, workplace violence

    Ensure that HR policies are clearly explained and fairly applied (no exceptions)

    Review physical environment (in response to threats from external sources)

    RISK ASSESSMENTS

    Review all factors that can lead to counterproductive workplace behaviours e.g. workplace bullying

    Involve all the employees - consultation

    Identify the hazards/risk factors

     Negative leadership styles (Includes autocratic styles and styles that are too relaxed with inadequate supervision and feedback)

     Organisational change

     Workplace relationships

     Organisational/workplace culture

     Human resources systems

     Inappropriate systems of work

     Poor workplace relationships

     Workforce characteristics

    RISK ASSESSMENTS

    Identify the hazards e.g. use a Bullying Risk Assessment Tool (BRATT PACK)

    • Workplace audits

     Review of injury reports and incidents and absenteeism rates

     Worker’s compensation claims

    Evaluate the risks

     Frequency, causes, actions taken and consequences of workplace bullying incidents

     Who is affected (target, alleged bully, organisation, medical and legal professionals, family/friends and associates, investigators, media

     Information from previous incidents

    Take measures to eliminate or control the hazards

     Priority is to eliminate hazards at the source

    Document actions taken, measures to control the hazards

    POLICIES AND PROCEDURES

     Simple and effective policies and procedures

     Develop an implementation plan

     Review policies and procedures regularly

    INFORMATION, INSTRUCTION AND TRAINING

     Ensure new and existing employees are trained

     Train managers and supervisors on conflict management

     Make them accountable for managing the risks
     Use the performance management processes

     Provide employees working in high risk areas with workplace specific training

    Educational processes should be in place to:

     Change culture of tolerance and acceptability of counterproductive workplace behaviours e.g. workplace bullying

     Encourage appropriate management style and organisational culture

     Promote appropriate workplace culture

     Top management commitment

     Focus on safe working conditions

    WORKPLACE TOOLS

    Policies and Procedures

    • Introduce a workplace policy that sets out the standard of behaviour that needs to be followed at work
    • Promote the policy and allocate responsibility
    • Encourage reporting of incidents
    • Develop and implement set procedures for responding to bullying complaints
    Information, Instruction, Training and Supervision
    • Induction program for all employees regardless of status
    • Ongoing bullying awareness and prevention training – based on compliance with policy and procedures
    • Respond to changes in technology with appropriate training – currency of knowledge
    • Informed supervision – ensure supervisors know how to monitor and respond
    Monitor and Review
    • Make bullying a permanent agenda item for
    • Management meetings
    • Board meetings
    • Health and safety committee meetings
    • Review policies and procedures on a regular basis to ensure safe system of work

    SUPPORT NETWORK

    • Provide employees with a support network e.g. EAS/EAP, Harassment Referral Officers, Peer Support Officers etc

    • Provide list of sources of advice or support (internal or external or a combination of both)

    • Internal policies and procedures

    • Positive workplace behaviours versus negative workplace behaviours

    • Code of Conduct

    Organisations should be aware that whilst a Support Network is established, not all those who seek advice from that Network will do so for the point of making a formal complaint. At the same time, some individuals will not make a complaint because they will perceive they will be further victimised, threatened or intimidated for doing so.

    If a support network is to be effective, all those who undertake that role should have that role documented within their performance agreement. In most cases, the role is undertaken on a voluntary basis and depending on how they perform their role, they could see their 'paid' work suffer e.g. performance issue.

    HEALTH AND SAFETY

    Roles and functions

    Focus on physical aspects

     Zero harm

     Psychological injuries

    Need to look at action/reaction/consequence model

     Repeat the behaviour often enough

    Board agenda item

    SUMMARY

     Not a standalone system

     Complexity of issues involved e.g. constant change and decisions

     Work with limited data e.g. direct and indirect costs

     Culture is a critical issue in auditing counterproductive workplace behaviours such as workplace bullying

     Audit role of independence and cultural barriers

     Legal risks the organisation faces

     New and emerging issues

     Understand reasons for policy development

     Sell the policy through consultation and communication

     Drive the policy and related procedures

     Maintain currency of knowledge to drive changes

     Link the policy to other related policies

     Resource the implementers

    CONCLUSION

    • Workplace bullying is a valueless and obsolete behaviour that is being imposed on individuals with increasing frequency

    • Whilst only a small number of individuals bully, there are few targets, little perceived cost and insufficient objections to the behaviour

    • Only when a sufficient number of people are effected will the problem be properly addressed, tackled and overcome

    • Escalation of denial and increasingly vindictive measures being taken to threaten and intimidate those who dare stand up and proclaim the injustice can be taken as a sign of a threshold for change in society’s attitude

    • Courage, maturity and combined efforts are required to overcome the behaviour

    Bullying is a problem in society

    Resolution requires

    • Acknowledgement that bullying exists
    • Recognition of what it is
    • Rejection of all forms of bullying
    • Recognise the costs

    Create a climate of unacceptability by exposing bullies

    Take positive action

    • Review of grievance procedures

    • Training

    • personnel and human resources department
    • occupational health and safety staff

    • Provision of a welfare and counselling service for targets of bullying

    • Opportunities for counselling for families of targets

    • Independent and continuing review of disciplinary and legal actions against the employer

    • Facilities for independent monitoring of the procedure and its effectiveness

    • Use of exit interviews to catch otherwise elusive cases

    Organisations should be in the habit of reviewing systems and processes post investigation. However, it may be advantageous to develop preventive and proactive strategies that can ensure that all complaints or concerns about workplace bullying are addressed, without the need for 'full blown investigations'. Policies can procedures can be rewrittten and updated to changing environmental issues, but when damage to individual or organisational reputation occurs, the damage may not be repairable.

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