Category archives: Workplace Bullying

Finding bad apples

bad apple

Bad apples exist throughout society and business is no different – these people need to be found before they make the other apples bad. Before the rot sets in – as they say. I have spent much of my life finding the bad apples. I have observed that Business and employees need protection and that compliance alone is not adequate.

CCndexLast week I was fortunate to be the keynote speaker at the 2014 Comcare National Conference in Melbourne. I shared with more than 650 delegates about where my passion for keeping workplaces safe. I went on to tell of my deep sense of purpose and my thoughts about preventing inappropriate behaviour in the workplace. The central point of my presentation was that staying in a place of compliance is not a safe place for organisations to be and that ‘hope is not a strategy’.

I challenged the audience to consider:

If you focus, take a systems approach and you are tenacious, you get to play a bigger game.

For most organisations the response to prevention of workplace behaviour risk is defined by the ‘risk appetite‘ of the executives, directors and leaders within and of course, budget. The obligation on directors & organisations to provide a safe workplace is very clear. Regulators and tribunals know this and encourage compliance to a standard. A standard developed which is a minimum standard. This standard is often patently inadequate given the resources available to larger organisations.

We are seeing increased compliance and regulation placed on organisations around safety because compliance alone isn’t preventing or reducing workplace behavour risk adequately. It isn’t fueling the adequate pace of reduction in injury and cost reduction.

Cats ndexAdopting a minimum standard is like a sporting side taking the field in a ‘do or die’ final and the players only doing their minimum, instead of playing full on. Imagine the coaches and supporters viewing such an approach from their team. I have no doubt that changes would be made quickly to improve performance.

To me the approach for us is no different but the stakes are much higher. We are not simply playing for a trophy and accolades. We are playing for greater engagement, productivity and the improved health and well being of Australian workers and their families. Not just for now but for future generations.

Here is the irony – I know we have done a great job for our clients when they no longer need us…

Could you play a bigger game to keep your team safe?

Myths about work place bullying

Bullying Def

I have heard many descriptions and definitions of bullying. Most times people jest or diminish the meaning of the word as if they are trying to dismiss it. I thought it worthwhile to be really clear.

  • It is not ‘just’ a personality clash
  • It is not a leadership style
  • It is not a matter of perception
  • It is not a difficult conversation in a performance review

It is ‘repeated, unreasonable behaviour that creates a risk to the health and safety of an individual or a group’ The important thing to know is that ignoring it will not make it go away!  If you see it, or experience it – do something about it. Everyone is entitled to a ‘great day at work.’

The Impact of Bullying – Leadership Required

Screen Shot 2014-06-10 at 7.56.19 pm

Nearly 80,000 people have viewed this video which shows the impact of workplace bullying on people.

It explores why leadership is critical.

The definition of workplace bullying is different in Australia – but the outcome and damage it causes the same.

It is defined here as: ‘repeated, unreasonable behaviour that creates a risk to the health and safety of an individual or a group’.

Although the definition is different, the outcomes on people, business and productivity are relevant. The commentary on leadership is particularly interesting.

Take 10 minutes to view the video – and if you don’t know where your business is positioned regarding bullying and other anti social behaviour – then do the self assessment by clicking here. Workplace Behaviour Risk Audit Survey

Fair Work Australia – First Rulings

The first substantial order made by the Fair Work Commission was made by Senior Deputy President Drake, on 21 March 2014 in the case noted as (Applicant v Respondent PR548852, Sydney, 21 March 2014).

The names of the parties to the proceedings have not been published and there are no reported details of the background facts; merely a report of the orders made, by consent, following a preliminary conference between the parties. The orders provide an indication of the flexibility available to the FWC in tailoring relief to specific situations, and a glimpse of how a stop bullying order could have real and disruptive impacts on workplaces. The orders were that the employee the subject of the application – the alleged bully:

  • Shall complete any exercise at the employer’s premises before 8.00am.
  • Shall have no contact with the applicant alone.
  • Shall make no comment about the applicant’s clothes or appearance.
  • Shall not send any emails or texts to the applicant except in emergency circumstances.
  • Shall not raise any work issues without notifying the Chief Operating Officer of the respondent, or his subordinate, beforehand.

Further, the applicant was ordered not to arrive at work before 8.15am each day.   The significance of the orders is that a contravention of them could lead to prosecution for substantial civil penalties.  The parties were granted leave to have the matter re-listed for a further conference in the event of any difficulty with the implementation of the orders.

 This second case clarifies that workers who have been bullied prior to 1 January 2014 can seek orders aimed at preventing the bullying from continuing or reoccurring.

On 6 March 2014, the Fair Work Commission (FWC) ruled that its jurisdiction to hear complaints from workers who allege they are victims of workplace bullying extends to complaints that relate to bullying that occurred prior to the anti-bullying regime coming into force.

Background

On 9 January 2014, Ms Kathleen McInnes filed an application for an order to prevent her from being bullied at work. One of the respondents was Peninsula Support Services (PSS). Ms McInnes alleged that she was subjected to bullying behaviour over a six-year period commencing in November 2007 through to May 2013.

PSS raised a number of jurisdictional objections to Ms McInnes application. The key issue was whether the FWC had jurisdiction to hear and determine an application involving alleged bullying conduct, which occurred prior to 1 January 2014, which is when the anti-bullying provisions in the FWA commenced.

Given the importance of the case, it was heard before a full bench of the FWC comprised of President Justice Ross, Vice-President Hatcher and Commissioner Hampton. In addition, the Commonwealth, Australian Chamber of Commerce and Industry (ACCI), Australian Industry Group (AIG) and the Australian Council of Trade Unions (ACTU) were invited to make submissions. The AIG and ACTU made submissions, whilst the Commonwealth and ACCI did not.

What arguments were advanced?

The submissions of the PSS and AIG can be summarised as: the FWC had no jurisdiction to hear and determine bullying claims related to conduct that occurred before the commencement of the relevant provisions of the FWA (i.e. before 1 January 2014) and that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation, contrary to the intention of Parliament.  In support of this view, the PSS argued that the use of present tense of Bullying suggested that a worker can only be ‘bullied at work’ from a point in time when that legal characterisation of ‘bullying’ was in force (i.e. after 1 January 2014).

 What did the FWC decide?

After engaging in a careful and thorough examination of the relevant legislation, the FWC rejected the submission of the PSS and AIG. The FWC noted that the anti-bullying regime:

 …operates prospectively and is directed at preventing the worker being bullied at work. The Commission is specifically precluded from making an order requiring the payment of a pecuniary amount, hence it cannot make an order requiring a respondent to pay an amount of compensation to an applicant. The legislative scheme is not directed at punishing past bullying behaviour or compensating the victims of such behaviour. It is directed at stopping future bullying behaviour. 

 As a result, the FWC ruled that the anti-bullying provisions of the FWA were ‘basing future action on past events, and hence [are] not properly characterised as retrospective’.  Put another way, the FWC was of the view that the law ‘operates prospectively in the main based upon past events’.

The Commission rejected the view that if the FWC were to hear such claims, it would give the relevant anti-bullying provisions contained in the FWA retrospective operation as, in its view, the anti-bullying provisions in the FWA ‘[do] not attach any adverse consequence to past bullying conduct. Such conduct merely provides the basis for a prospective order to stop future bullying conduct.’

As a result, the FWC ruled that it did have jurisdiction to hear anti-bullying complaints based on conduct that occurred prior to 1 January 2014, and remitted the matter for determination.