HRM takes a look at two FWC examples that highlight the complexities of workplace bullying claims. They don’t always have cut-and-dried outcomes.
Using two recent Fair Work Commission decisions as examples, HRM takes a look at some of the complexities of assessing workplace bullying and offers advice for leaders on how to manage difficult employees.
The startling facts
A 2016 report into workplace bullying from Safe Work Australia placed Australia as the sixth highest country for bullying rates in comparison with 34 European countries – not a ranking we should be proud of.
The report uncovered high levels of bullying in the electricity, gas and water supply; health and community services; and government administration and defence industries. The most common forms of bullying included being sworn at or yelled at (37.2 per cent); being humiliated in front of others (23.2 per cent); and being physically assaulted or threatened by patients/clients (21.8 per cent).
A misunderstanding or not?
Cases of bullying can be complex and, at times, hard to prove.
Sometimes misunderstandings can arise for various reasons: misinterpretation, cultural differences or disputes over what exactly was said or done. This recent Fair Work decision is a perfect example of this.
It involves a carpenter who says he was forced to resign from his job due to concerns for his safety but whose request for unfair dismissal remedy was denied by the Fair Work Commission.
The employee of Impresa House says he was approached by a Russian-born director of the company who stood close to him and said: “I know what you f***king said in the lunchroom, next time I take your liver,” pointing to the carpenter’s abdomen.
The carpenter said he feared for his safety, and that of his family, and reported the incident to the office manager who immediately set up an investigation. During this initial conversation, the carpenter expressed his desire to resign from the company as he felt it didn’t have his safety in mind.
There was some disagreement around the severity and context of the comments. The director claimed he thought people were laughing at him in the lunchroom. Then, as he was leaving the site, he claims the carpenter asked him “What are you doing here?” He was offended by the question and so said, from some distance away, “If you ask me again, I show where you liver”.
The “ungrammatical formulation” from the native born Russian was labelled a “throw away line” by deputy president Alan Colman “such as ‘I’ll knock your head off’”. Inappropriate, but not life threatening.
The company did not feel this comment warranted a serious threat to the carpenter’s safety but agreed it was inappropriate for the workplace and the director was stood down for a week without pay.
This is a decision that Colman supported, stating: “I appreciate that [the director’s] reference to [the carpenter’s] liver is unusual in the ear of a native English speaking person, and carries perhaps a somewhat sinister tone. But I do not accept that it could reasonably be thought that [the director] was going to harm [the carpenter], let alone [his] family.
“Further, even if I had preferred [the carpenter’s] account of the words used by [the director], I would have found that the expression ‘I will take your liver’ or words to that effect could not reasonably be taken literally in the circumstances,” Colman says.
The carpenter was found to have resigned on his own terms.
The line was crossed
There’s a very fine line between banter and verbal abuse. And the tipping point is often when such “banter” is directed at a single person by more than one other person.
In another recent FWC decision, the dismissal of two senior staff members has been upheld as fair. They were accused of several instances of serious and wilful misconduct, most notably repeated verbal abuse towards a few colleagues (and one female staff member in particular) at a company with, according to the decision, “a minimalist approach to workplace culture”.
The two dismissed employees were a stevedore (with 40 years’ tenure) and a supervisor of Port Giles Wharf.
Some of the alleged comments made were: “If you keep on eating cake you will have to walk sideways up the gangway” and “what, more f**king holidays? Why don’t you just write in when you are available?”.
It was also reported they would jokingly suggest other employees wear earplugs if they were working with the female employee, “joking” that she never stopped talking.
The female employee also alleged the stevedore said “f**king women, don’t they ever shut up?” and that the supervisor said: “Don’t you women ever f**king shut up?” Both deny making these statements.
The supervisor especially had an obligation to lead by example, says Platt, not to “belittle or embarrass a team member”.
Platt noted that the employees of the wharf were quite familiar with each other and “swearing and banter” often occurred at the wharf but says “their conduct was inconsistent with their supervisory responsibilities and the policy”.
The decision also found that the supervisor had been submitting and authorising fraudulent timesheets and was guilty of favouritism.
It’s not the first time the FWC has had to clarify the definition between banter and bullying and, unfortunately, it probably won’t be the last. Key to the dismissal being upheld as fair were the notes from the formal investigation into their behaviour by of the HR manager, and the lack of contrition on the part of the applicants.
“[It’s] clear that the workplace culture at Port Giles was suboptimal,” says Platt.
He noted that earlier intervention from the organisation may have been a successful way to avoid this particular situation from going so far, and could have prevented their dismissal.
Advice for managers
It’s not just bullying from colleagues that HR managers need to keep an eye out for. Marcela Slepica, clinical services manager at Australian not-for-profit organisation AccessEAP, says that reports of aggressive and threatening behaviour from clients and members of the public are increasing too.
“Learning the skills to respond to emotionally charged situations is crucial for today’s managers,” she says.
Slepica offers three strategies for managers to defuse challenging behaviours in the workplace.
1) Don’t react, respond
When you’re approaching someone who has been accused of workplace bullying, or if you witness it yourself, Slepica says, “Responding allows us to control the situation, whereas reacting lets it control us”.
“Try not to justify or defend yourself, let them express their frustration and once they have finished, speak with confidence, explain, educate and win their respect. Do not argue with the other person as this will escalate their emotions,” she says.
She suggests avoiding statements such as “You wouldn’t understand” or “Be reasonable”. Instead, try using empathetic statements to “absorb the tension”, something like, “Let me be sure we’re on the same page”.
2) Recognise how your own body responds to stress
“When faced with a threat, our bodies experience a collection of responses and our brain activates a threat response even before our conscious mind can process what’s happening. This stress response reduces our capacity for logical thinking so it’s important to take a step back and assess your physical, mental, emotional and behavioural reactions in order to determine the best course of action,” she says.
3) Look after yourself and others
If you experience an incident that’s low on the seriousness scale, Slepica suggests debriefing with your team and having a group conversation about the issue. If it’s something more serious, it might be a good idea to bring in trauma support and counselling services. This is on top of any formal investigations that are being undertaken.
For more advice on dealing with workplace bullies, read HRM’s article ‘7 tips for standing up to bullies at work’.
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Learn how to manage problematic workplace behaviour with this Ignition Training course ‘Bullying and Harassment’.