Momentum increases for tangible action on workplace bullying

According to the Canberra Times, a company board has been served with an improvement notice over inadequate attention to workplace bullying claims in a retirement home.  The ABC television program, 7.30, has followed up workplace bullying claims aired earlier this month with a further case on 25 September 2012 with savage criticism of WorkSafe Victoria’s actions in the case.

The Australian Government has completed the public hearings of its Parliamentary Inquiry into workplace bullying.  Bullying is everywhere but little seems to be happening to address the various elements and deficiencies of the regulatory system.

On 21 September 2012 the WorkSafe ACT Commissioner warned about inaction on workplace bullying:

“If bullying has not occurred, then a properly conducted investigation should find that… If, on the other hand, an independent investigation substantiates the allegations, then the employer will be in a position to act to protect their workers from any ongoing threat to their health and safety.”

The clear implication in this statement is that the board of the Morshead retirement village is that the board was informed of allegations of workplace bullying but failed to act.  The significance of an improvement notice being lodged against a Board and not the Person Conducting a Business or Undertaking (PCBU) under the Work Health and Safety laws is discussed further by lawyer Graham Dent in his LinkedIn forum. The facility’s website states its values as

“Compassion – Accepting individuals as they are and being present in times of changing needs Accountability– Caring, skilled staff and responsible management, supporting team members to take personal and professional responsibility Respect – Treating residents and staff equally, with dignity respect, and justice. We aim to meet the evolving and diverse needs of our residents. Eden Philosophy – Seeks to eliminate loneliness, helplessness and boredom providing a comfortable friendly home environment.” (emphasis added)

Being  active on safety or reactive on safety seems to be far less serious that being inactive on safety.  The president of the board, John King, and the CEO of Morshead were contacted for comment.

Media Coverage

7.30’s report included several talking heads, including Minister Bill Shorten, discussing options for new legal approaches for addressing workplace bullying but few suggestions for reducing the incidence of workplace bullying. On this issue few extend suggestions beyond prosecution and punishment but it is accepted that this type of penalty has limited deterrent value.  The mother of the young apprentice in tonight’s 7.30 article was angry at her son’s employer and work colleagues but her anger was exacerbated into outrage at the betrayal felt over WorkSafe’s investigation of her son’s allegations.

OHS regulators need additional resources and a new skill set to be able to address workplace bullying to the expectations of the community.  Moving the pursuit of justice into the sector of no-fee, no-win lawyers is short-sighted and likely to lead to more conflict and dissatisfaction, as evidenced on some web blogs.

OHS Regulation

The establishment of an independent tribunal to hear workplace bullying allegations, as advocated by many in the Parliamentary Inquiry and elsewhere, has considerable merit but is likely to face the same resource limitations as the OHS regulators.  A “toothless tiger” of a tribunal would simple encourage outrage.

Workplace bullying can be addressed through OHS mechanisms and the solid work on this hazard in Australia over at least a decade should not be ejected but OHS regulators are often hamstrung by more than inadequate resources.  As in the WorkSafe ACT case, many perceive the responsibility for a safe workplace as sitting with the regulator and compliance coming through the activities of that regulator.  The principal safety role and duty of the employer has been eroded and the new mystical concept of the PCBU is not helping.

Regulators can often do little more that advise, assess, or recommend as they investigate non-visible workplace injuries and incidents.

The Under-emphasised Role of the Employer and PCBU

The crucial role of the employer or PCBU in workplace bullying is often underplayed as many of the control measures relate to this amorphous matter of workplace culture that no one can readily describe, let alone explain it in such a way that employers can identify their damaging culture or measure any improvements in their culture.  And, anyway why should employers be responsible for the societal microcosm of the workplace?

Guidance

OHS regulators have failed to provide any useful guidance on the meaning and importance of a positive and safe workplace culture.  Even Safe Work Australia has no immediate plans for such a Code through the harmonisation process.  There are bits and pieces in the public sector but no coordinated strategy or guidance.  Some of those cultural strategies include the 2012 Code of Conduct from the New South Wales Ministry of Health, Queensland’s Code of Practice on Workplace Harassment from 2004, or Queensland Health’s 2011 Code of Conduct.

Internationally there is more useful information but how successful these have been is hard to determine.  HSE in Dublin released a publication in October 2011 called “Creating a Positive Work Environment – A Line Manager Guide to Conflict Management and creating a Positive Work Environment“.  The European Union released a cultural assessment report in 2011 called  “Occupational Safety and Health culture assessment – A review of main approaches and selected tools“.

Safe Work Australia’s second go at a Code on Workplace Bullying was due by the end of 2012 and, even though the Government linked the Parliamentary Inquiry to this Code of Practice, the timetable for publication is unclear.  Even when this is released, it is likely to still deal with one particular psycho-social hazard instead of tackling the broader societal risk of mental health, a hazard that only yesterday was described by a European Parliamentarianas needing to be classified as an “occupational disease”.

Within the next couple of years Australia needs

  • an independent workplace bullying tribunal to give people justice;
  • increased skills and resources for OHS regulators to determine evidence; and
  • a focussed national strategy on addressing mental health specifically in the workplace, building on the excellent work undertaken by Pat McGorry and others in 2010/11.

Most of all Australia needs leadership on this issue. To do any less would be societally negligent.

Kevin Jones

8 thoughts on “Momentum increases for tangible action on workplace bullying”

  1. a company can bully and sack u without notice once u are off the workplace workcover state the bullying no longer exists\’\’ leaving the worker to
    Most unlikely succeed for damage s other issues of death threats to life if reported by desperate companys and negligent union delegates etc the system for me after 5 years of fear near death injury from stress caused after 6 months of abuse folloew by unfair dissmissall inc assault false imprisonment\’ not rported by witness now in constant fear of life threats and courts further vilifuing victim\’ stay tuned to public release of my destrutive loss of 35 years etc by arrogant company backed thug

  2. The 2010 Victorian Equal Opportunities Act explains clearly the positive duty that we have for preventing unacceptable workplace behaviours.
    I think the prevention of bullying cannot be understated. This means all organisations should have
    a. behaviours policy
    b. complaints procedures
    c. action plan which includes extensive awareness training and data collection and appointment of contact officers.

  3. There is an element of risk in providing \’legal advice\’ via a blog as Kevin has alluded to. Each incident needs to treated on its merits and investigated accordingly.

    Providing \’blanket\’ or \’generic\’ advice may not address the specifics of the incident for any of the parties involved. Whilst there may be a range of options available for an individual or an organisation, the advice that is relevant and appropriate to one incident, may not be for another.

    From past experience, the educative role undertaken by key support personnel varies. In some cases, they only provide \’limited\’ advice e.g. stick to the policies with no detailed explanations of the implications of the various options including seeking legal advice. In other cases, attempts to explain how the WorkCover claims process works, is not seen as being relevant to what the support person does e.g. Harassment Referral Officer.

    When employees have little faith or trust in organisational systems or processes and seek advice from external sources, then one might argue there is a ticking time bomb of potential claims or reports that may impact on individual or organisational reputations. It does not help when complaints are \’flick passed\’ or \’fobbed off\’ to someone else, or are not treated seriously.

  4. Workplace bullying can be managed with the multiple interdiction strategies mentioned in the article. Key to effective Ant-bullying Strategy is establishing acceptable and unacceptable behaviors and holding offenders accountable. While regulations impose sanctions the ultimate objective is self-accountable management behavior of which includes the use of independent assessments in those instances where implications thwart resolution.

    All too often bullying is dismissed as \”exuberance\”, \”unintentional\” \”rationalized\”. The real problem is the employer\’s reluctance to hold the bully accountable. In the end the issue shouldn\’t be whether the allegations can be proven but rather that all complaints will be taken seriously.

  5. Kevin, I think the report on last night\’s 7.30 about the apprentice bricklayer being bullied is a demonstration of the limitations of legal action in these situations. Ultimately the case boiled down to the apprentice\’s word against all the other people who were employed by that firm. It wouldn\’t matter how well resourced the regulator was, the weight of evidence is against the apprentice and the regulator is hamstrung. I doubt that this provides much solace or would be accepted by the apprentice\’s family but perhaps they should vent their rage at the employer who is legally responsible for ensuring a safe work environment in all aspects of the term rather than at the regulator who is responsible;e for enforcing a piece of legislation.

    1. Dave, you are right about the 7.30 case. From the information available, there were more deniers of the alleged bullying than evidence in support. I was surprised that the apprentice\’s employer was not named or interviewed. Also, given the level of criticism of WorkSafe, Leigh Sales did not say that WorkSafe had been approached for comment.

      There is always more to workplace bullying cases than is revealed in the media. If a tribunal is established to \”deal with\” workplace bullying, it should also consider how the judgements or settlements of any complaints are publicly shared. Without sharing, the tribunal could become a process for punishment with little educative or harm prevention role.

  6. Another little crack in the system is that ,if an employee who has had a workplace injury ,who has their case accepted by the employer stays at the firm on limited duties but does not put in a claim for compensation may six years down the track be subject to ongoing pressure of a demeaning nature being forced out, and find that the six year time limit is up and and they have no legal claim despite a ongoing physical and mental condition from the injury identified by doctors ,this gives employees the opportunity to clear injured workers legally from their payroll legally .
    This makes a mockery of RTW ,is there a scrapheap out there of injured workers legally expunged from the firms after a period of time who then end up on centrelink funded by the taxpayer .
    Kevin this is something maybe some legal advice to your site could be addedbecause Im sure a lot of injured workers will not know about the six year time limit on injury claims .

    1. Mick, there is a whole area of poorly managed RTW matters, too many to cover on this blog. The Parliamentary Inquiry into Workplace Bullying heard many presentations about \”bullying\” by poor workers compensation insurers. I am sure the inquiry will include something on this submissions and concerns in their final report.

      Also SafetyAtWorkBlog has never been a site of legal advice and probably never will be. Since starting this blog plenty of legal blogs and legal info websites have appeared but few if any provide online advice. That path is fraught with enormous legal liability risks and I can\’t see anyone setting one up any time soon.

      I think your point about the six year limit is valid but the focus of this blog has always been to try prevent injuries and harm. With that aim, it can be possible to minimise interactions with lawyers and avoid serious injury. It is an aim I support and advocate as it makes life simpler and provides a better quality of life.

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