Michael Cosgrove from Workplace Laws discusses: - Steps to prevent workplace bullying - The process of dealing with workplace bullying after it occurs - Legal frameworks, resources available for businesses and options for employees to have their workplace bullying issues dealt with effectively Cover your workplace with LawPath's Workplace Policies Bundle: http://bit.ly/1AFe9VM

1. S
Workplace Bullying
A Time for Action
Presented by Michael Cosgrove
michael.workplacelawsbris@gmail.com

2. Bullying Behaviors
Typically Workplace Bullying can take many forms.
From the simple action of what you perceive as harmless
innuendo and sarcasm, to the very obvious physical
isolation, teasing and name calling.
The difficulty faced by every business owner, manager,
supervisor or team leader, is being able to ride the fine line
between “Managing” an “Bullying” an employee.

3. Todays Webinar
Todays webinar is designed to deliver, and reinforce, some
basic fundamental actions that employers and employees
can take to address bullying in the workplace.
Split into the following three sessions:
1. Risk Management Strategy’s
2. Incident Control
3. Legal Frameworks

4. What is Workplace Bullying?
Put simply, Workplace Bullying is:
The repeated, less favorable treatment of a person by
another or others in the workplace, which may be
considered unreasonable and inappropriate workplace
practice.

5. Cost to the organization
The impact of workplace bullying is truly un-measurable.
Failing to take action, primarily preventative action, against
bullying can cause high absentee rates, low morale, low
productivity, increased work-cover issues, discrimination
claims, and possible criminal action to name but a few.

6. Risk Management Strategies
Taking proactive steps in the workplace can significantly
minimize the potential for bullying to occur.
Employers must realize that every employee is different. Not
just male/female, but culturally, morally and ethically.
So what are some simple strategies?

7. Use a collective approach. Empower employees to assist
others when bullying is evident, and ensure that they know
that their assistance will not disadvantage them in any way.

8. Hold regular employee meetings (toolbox talks) and ensure
that bullying is on the agenda all the time.
Openly discuss any issues and reinforce to all employees
that bullying of any kind will not be tolerated in the
workplace.

9. Ensure all employees are aware of their rights, as well as
their obligations, and where necessary work individually with
employees to identify unacceptable practices and behaviors
and how to handle different situations.

10. Develop a robust Workplace Bullying Policy.
A policy must include a basic procedure for dealing with
bullying incidents including points of contact for employees
and managers, details of the EAP (if applicable) as well as
the procedure for reporting a bullying incident.
Conduct regular training sessions for both managers and
employees.

11. Four step process
There is a 4 step process to preventing workplace bullying:
1. Identify the Risk (of workplace bullying to the business)
2. Assess the Risk (of workplace bullying to the business)
3. Control the Risk (consult with employees and implement
strategies to mitigate risk)
4. Monitor and Review (this is an ongoing step to ensure
strategies are working effectively)

12. Identify the Risks
1. Observe if inappropriate behaviors are in the workplace.
2. Observe if any changes occur in employee behaviors
and identify if there is any HRM intervention required.
3. Observe changes in the workplace environment.

13. Assess the Risks
1. What is the probability of workplace bullying occurring?
2. What is the businesses current process for addressing
complaints?
3. What considerations have been given to the financial,
moral and legal costs of bullying?
4. Do additional steps need to be taken to prevent and/or
resolve workplace bullying in the business?

14. Control the Risks
This is the critical step.
This step itself requires a 3 stage approach.
Firstly there must be consultation and commitment by all
parties. Control measures must be developed, and anti-
bullying strategies must then be implemented.
It is imperative that this stage has full involvement with the
employees as well as management (Collective action)

15. Consultation and Commitment
Small to Medium businesses are time poor, and in most
cases do not have readily available access to adequate HR
support or advice.
A simple “employee survey” or “anonymous suggestion box”
can be effective in opening up communication lines.
Remember no 2 bullying incidents will be 100% identical in
how they occur, they can however be 100% identical in how
they impact the business and it’s employees.

16. Develop Control Measures
1. Develop a robust Workplace Bullying Policy
2. Include a detailed complaints procedure
3. Charter of employee rights
4. Code of Conduct
5. Periodic monitoring and evaluation of the work
environment to ensure policy compliance.

17. Implement anti-bullying
strategies
1. Collective approach
2. Consistent and constant education
3. Contact officer

18. Monitor and Review
1. Regularly collect and evaluate information in regards to
the performance of the strategies, as well as any other
employee feedback.
2. Evaluate the suitability and effectiveness of the
strategies and adjust accordingly.
3. Observe any changes in the work environment and
consult when necessary.

19. Incident Control
Before commencing with any investigation it is imperative
that you be aware of the underpinning principles and an
ethical investigation. These are:
S Natural Justice/Procedural Fairness.
S Standard of Proof
S Confidentiality
S Support the person making the complaint and any
witnesses, but maintain complete impartiality.

20. Investigation tips and hints
Investigating workplace bullying, or indeed any workplace
relations issue, takes experience.
It is advisable to engage a competent external Investigator
should you not feel fully confident.
However, should you chose to investigate the complaint
yourself here is a basic investigative process, along with
some tips and hints to assist you.

21. S Interview the complainant first, in a comfortable and
relaxed area. Avoid high traffic areas such as lunchrooms
or open offices. It is my suggestion you chose a location
off site, or a remote location such as an office or
boardroom away from the main work area.
S It is likely that the complainant has opened up to another
worker, friend or family member. Allow them the option of
bringing a support person with them to the interview,
however, reiterate to the support person that they must
not interfere in the interview process.

22. S Prepare your questions in detail prior to the interview. A
good place to start is with the basic who, what, when,
where and why.
S Record as much detail in writing as possible.
Documenting the complaint and investigation in detail is
critical should disciplinary action be required later.
S Listen carefully to the complainant. Clarify any issues you
have at the time. Don’t wait till the end of the interview to
go back over anything.

23. S When interviewing possible witnesses remember to
reinforce confidentiality, and the need for honest and
open communication. Make sure they understand that
providing false and misleading statements could severely
jeopardize the investigation.
S Gather and consider ALL the evidence. Do not discount
any evidence or statements as being irrelevant.
Remember.
Something considered not important today, might be vitally
important tomorrow!!!

24. Once you have gathered all your evidence it is important to
ensure that if disciplinary measures are required that the
“punishment must fit the crime”.
Remember that whilst it is important to address the incident,
over-reaction and excessive disciplinary action can have a
detrimental effect on workplace culture, as well as impact
the business financially by way of avoidable legal action.

25. A single workplace bullying incident can have untold effects
on both the employees, and the commercial future of the
business as a whole.
It is imperative that employers and employees are not only
aware of the businesses policy and processes in dealing
with workplace bullying, but they should equally be aware of
their rights within the current Legal Frameworks.

26. Legal Frameworks
On the 27th June 2013 the Parliament passed the Fair Work
Amendment Bill 2013 that granted the Fair Work
Commission (FWC) jurisdiction to deal with workplace
bullying.
For the 1st January 2014 the amendments will allow a
worker who believes that they have been bullied to apply to
the FWC for an order to stop the bullying
The provision is not limited to employees, but extends to
contractors, labour hire and other workers engaged under
other workplace arrangements.

27. FWC has 14 days to commence dealing with the application
and may make any orders it considers appropriate to stop
the bullying, other than a payment of compensation.
Before making any order the FWC must be satisfied that the
worker would otherwise continue to be bullied.
Breaches of any orders may lead to penalties for both
individuals and companies.

28. It is interesting to note that “unreasonable behaviour” is not
defined in the Act.
Unreasonable behaviour can be simply defined as
behaviour that a reasonable person, taking into account the
circumstance, would see as unreasonable, including
behaviour that is victimising, humiliating, intimidating or
threatening in nature.

29. Form 72 Order to Stop
Bullying
Form 73 Employer Response
http://www.fwc.gov.au/documents/documents/forms/Form_F
72.pdf
http://www.fwc.gov.au/documents/documents/forms/Form_F
73.pdf

30. Decisions Decisions
S In Application by Ms SB [2014] FWC 2104 (12 May
2014), the Fair Work Commission (FWC) has provided
its first detailed insights into the types of conduct
that will – and won’t – constitute bullying under Part
6-4B of the Fair Work Act 2009 (Cth) (FW Act).
S The decision by Commissioner Hampton, the FWC’s anti-
bullying Panel Head, also explores the concept of
“reasonable management action” in the context of
alleged bullying.

31. Apart from the anti-bullying order made by consent between
the parties in Applicant v Respondent, PR548852, 21 March
2014, see the two decisions in Application by McInnes
[2014] FWCFB 1440 (finding that conduct prior to 1 January
2014 is relevant to the FWC’s determination of bullying
claims.

32. 4 key points from
Commissioner Hampton
S Commissioner Hampton accepted that the making of “vexatious allegations”, spreading rude or inaccurate rumours, and
conducting an investigation in a grossly unfair manner could be considered unreasonable conduct and constitute bullying under
Part 6-4B if the conduct occurred repeatedly. So, too, could a manager be subject to bullying by employees that he/she
supervises.
S However, the Commissioner made the following findings in SB’s case:
S There was insufficient evidence “to provide a basis for findings that an individual or group of individuals have repeatedly
behaved unreasonably towards the applicant so as to create a risk to health and safety.”
S While some of the behaviour bordered upon unreasonable, Commissioner Hampton was not satisfied that “the limited degree of
unreasonable behaviour by the individuals concerned was such that it created a risk to [SB’s] health and safety.”
S “The receipt of the two complaints by management and the conduct of investigations in response were not
unreasonable. Indeed, that course of action was the only reasonable and prudent response.” Having the investigations
conducted by an external law firm was also not unreasonable.
S In response to SB’s argument that her employer failed to take appropriate action to support her after the initial complaint by NP
was investigated and found to be unsubstantiated – the employer did make some efforts to offer support, and SB actually “did
not see the value of that support at the time and communicated this.”
S In conclusion, Commissioner Hampton determined that SB had not been bullied at work within section 789FD, and therefore
there was no basis for the making of any orders.

33. Sarah Lock – workplacelaws@gmail.com
Michael Cosgrove –
michael.workplacelawsbris@gmail.com