MANAGING BULLYING, HARASSMENT AND DISCRIMINATION
Updated: Jun 4, 2021
A GUIDE FOR MANAGERS AND SUPERVISORS
All employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly.
This responsibility is set out in federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (Cth). Taken together, they make certain types of workplace behaviour against the law. In addition employers are required under health and safety legislation to ensure the workplace is a safe environment.
Managers therefore need to take leadership responsibility to prevent discrimination, harassment and bullying from occurring in the workplace and to ensure a consistent duty of care to all employees.
Managers are increasingly having to deal with complaints regarding behaviour that may constitute bullying, harassment or discrimination.
Managing these complaints can often create extreme tension and stress for all involved and must therefore be managed carefully and sensitively.
One difficulty with such issues is the circumstances or events that may have given rise to the complaint. This is not to doubt the veracity of any complaint: rather it is a factor in how the issue itself is processed or investigated and how any resulting outcomes are managed.
The first step for managers is to be clear themselves about what constitutes Bullying, Harassment and Discrimination.
Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person. The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.
Harassment can include behaviour such as:
telling insulting jokes about particular racial groups
sending explicit or sexually suggestive emails or text messages
displaying racially offensive or pornographic posters or screen savers
making derogatory comments or taunts about a person’s disability, or
asking intrusive questions about someone’s personal life, including his or her sex life.
It is important to understand that a one-off incident can constitute harassment.
The Sex Discrimination Act 1984 prohibits harassment in the workplace by employers, co-workers and other “workplace participants”, such as partners, commission agents and contract workers. Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.
The Disability Discrimination Act 1992 prohibits harassment in the workplace based on or linked to a person’s disability or the disability of an associate.
The Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Racial hatred is defined as something done in public that offends, insults or humiliates a person or group of people because of their race, colour or national or ethnic origin.
All incidents of harassment – no matter how large or small or who is involved – require employers or managers to respond quickly and appropriately. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints.
Workplace bullying is repeated and unreasonable behaviour directed towards an employee or group of employees, that creates a risk to health and safety.
The emphasis here is on 'repeated', meaning that a single incident of unreasonable behaviour is not considered bullying. It's still important to deal with what might look like one-off issues, however, as these have the potential to escalate. The 'risk to health and safety' is also important - in this context, we're talking about the effect bullying has on someone's mental health.
Bullying can happen in any type of workplace, and to people in any type of role - from front-line employees through to General Managers.
It can also take lots of different forms, from verbal or physical abuse through to online harassment. In some cases, workplace bullying extends beyond the working environment - for example, through emails or texts sent outside work hours.
The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.
Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. It can include physical or verbal abuse.
yelling, screaming or offensive language
excluding or isolating employees
assigning meaningless tasks unrelated to the job
giving employees impossible jobs
deliberately changed work rosters to inconvenience particular employees
undermining work performance by deliberately withholding information vital for effective work performance.
Legitimate comment and advice, including relevant negative feedback, from managers and supervisors on the work performance or work-related behaviour of an individual or group should not be confused with bullying, harassment or discrimination.
Providing negative feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, can be challenging. Managers should handle these conversations with sensitivity but they should not avoid their responsibility to provide full and frank feedback to staff.
Determining what constitutes bullying can often be a small step away from behaviour that upsets or offends. However making the call on what is bullying or not will sometimes rely on the following:
Is the complaint based on a difference of opinion?
Is the complaint based on poor management practices?
Is the complaint based on reasonable managerial actions?
If the answer to the above questions is YES then the behaviour will most likely not be bullying.
Remember - Bullying is NOT reasonable management action exercised in a reasonable way!
Discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics.
State and Federal laws protect people from discrimination of the basis of their:
race, including colour, national or ethnic origin or immigrant status
sex, pregnancy or marital status and breastfeeding
sexual orientation, gender identity and intersex status.
Discrimination can happen at different points in the employment relationship, including:
when recruiting and selecting staff
in the terms, conditions and benefits offered as part of employment
who is considered or selected for training and the sort of training offered
who is considered or selected for transfer or promotion
who is considered and selected for retrenchment or dismissal.
RESPONDING TO A COMPLAINT
Workplace complaints can be extremely distressing and disruptive. Team morale and service standards are often the first casualty of any matter that arises between two or more staff.
Notwithstanding your views as to the merits or otherwise of a complaint, it is extremely important that very complaint is responded to in a timely way and the complainant and the person complained of are treated with respect.
Having a fair and transparent process will assist in reaching a conclusion that does justice to the interests of both parties.
Characteristics of a good internal complaint process are:
It is fair
It is confidential
It is transparent
It is accessible
It is efficient
A good complaint process will also:
Protect employees from being victimised because they have made a complaint;
Protect employees from vexatious and malicious complaints; and
Ensure appropriate confidential records are kept about complaints and that this information is stored and managed appropriately.
MANAGING THE OUTCOMES
Irrespective of the nature of a complaint, people within a workplace will often have diverse views as to the causes, the guilt or otherwise of perpetrators and the preferred outcome.
As a consequence the management of the outcome will require careful and sensitive treatment, being mindful of the various interests of others.
Managers must ensure they apply consistency and objectivity to determining an outcome.
If the process applied in responding to a complaint has been fair, then an objectively applied outcome can be achieved.
Threats of retaliation by others must be ignored: as a manager you will need to demonstrate leadership in overcoming areas of resistance to your decisions.
You must also remember that the complainant has a vested interest in the outcome. He or she will be looking for an outcome that is supported by the process. Failure to align the two will result in undermining of your authority and could also result in a claim of adverse action against you.
Sometimes the outcome is that a complaint is not substantiated and therefore no action against the alleged perpetrator is required. This can be extremely difficult for the complainant as he or she will feel very strongly about what occurred. Similarly the other party may feel aggrieved because they have been under scrutiny for something they haven’t done.
Consideration should be given to providing counselling to both parties in order to bring about a productive workplace. Where this is not possible, then transfers or other non-punitive measures should be considered.
WHAT ACTION CAN AN EMPLOYEE TAKE
There are a number of actions that can be taken by an employee who feels aggrieved as a result of behaviours that occur in the workplace and any resulting management decisions.
Unfair Dismissal Claim
If bullying involves the termination of employment, then the employee could bring an unfair dismissal claim to the Fair Work Commission. The focus in these proceedings is on whether the termination was harsh, unjust or unreasonable in all the circumstances and workplace bullying may be only one of the issues involved.
Particular difficulties arise where an employee claims they have been forced to resign from their employment because of the actions of the employer. This situation is known as “constructive dismissal”. A resignation by an employee can still constitute an unfair dismissal by the employer if it can be shown that the termination was effectively at the employer’s instigation.
The Fair Work Commission can order reinstatement and/or compensation of up to 6 months wages.
Unlawful Dismissal, Adverse Action and Breach of Workplace Rights Claims
It is a breach of federal and state industrial legislation for an employee to be terminated for reasons of prohibited discriminatory grounds (such as age, race, sex, family responsibilities or temporary absence from work). Under federal legislation (which applies to all private sector employees), it is also a breach, in very simple terms, for an employee to take any detrimental step against an employee because they:
have what is called a “workplace right” or have exercised, or the employer thought they were going to exercise, a workplace right. A workplace right is essentially a right or benefit given to employee under workplace legislation, such as discrimination legislation or workplace health and safety legislation (eg the right to take personal leave, the right to be a WHS delegate or union officer); or
had the ability to make a complaint to the employer about their employment.
This avenue opens up a range of potential grounds for an employee in a situation of workplace bullying to rely on but it is important to remember the legal context of the claim. It is necessary to frame the factual incidents that have occurred within the available legal parameters. Ie in an adverse action claim, it is not the fact of the workplace bullying that is of primary relevance but the fact that the employee had a workplace right or did or did not exercise that right or made a query about their employment. This type of claim often involves an action taken by an employer in retaliation for something the employee has done.
There is no limit on the type of remedy that can be given by the court in this type of claim. Monetary penalties, compensation and injunctions are potential remedies. As with the unfair dismissal jurisdiction, the general rule is that each party bears their own costs which can make this an attractive avenue for complainants despite the technical difficulties that can be encountered
An employee can pursue a discrimination claim in the Equal Opportunity Commission (State) or the Human Rights Commission (Federal).
Workers Compensation Claim
If an employee has suffered an injury because of workplace bullying, such as a psychological injury, they can make a claim for compensation under the Workers Compensation provisions in the State.
The best way to achieve a no complaints environment is to create and maintain a culture that is respectful and honours the differences amongst team members who are themselves committed to treating each other with dignity.
Such a culture would embody the following:
consistent and transparent decision making,
clear behaviour standards
Everyone has the right to work in an environment free from bullying, harassment, discrimination and violence.