These Guidelines are intended as a comprehensive practical tool for both employers and employees in preventing and responding to workplace bullying. While the Guidelines are not binding on courts, they provide a very sound basis to determine whether an employer has acted fairly and reasonably in terms of managing and combatting bullying in the workplace.
The Guidelines define workplace bullying as
“repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”
This definition is somewhat wider than those established in previous case law which were more subjective – for example “repeated to gain power/ dominance”, “intended to cause fear/distress”, and “repeated oppression from less powerful to more” – which focused on the intention of causing harm.
Under the Guidelines, the reasonableness of behaviour is an objective test and the focus is on the protection of an individual’s safety rather than the motivation behind the offending behaviour of alleged bully. This makes it very clear that “I didn’t mean to …” is not a sufficient excuse!
In deciding whether particular behaviour amounts to bullying, the Guidelines recommend that employees ask themselves whether what they are experiencing is “unreasonable, repeated and health endangering. Unreasonable behaviour means actions that a reasonable person in the same circumstances would see as unreasonable. Repeated behaviour means that it is persistent, but can involve a range of actions over time - this means that a single incident of unreasonable behaviour is unlikely to amount to bullying.
Examples given include victimising, humiliating, intimidating or threatening a person.
The Guidelines emphasis that bullying is not
• one-off or occasional instances of rudeness
• setting high performance standards because of quality or safety
• constructive feedback and legitimate advice
• a manager requiring reasonable instructions to be carried out
• warning or disciplining employees in line with a workplace’s policies
The Guidelines specifically state that “reasonable management actions directed at an employee can’t be construed as bullying as long as they’re delivered in a reasonable way.”
It is not uncommon for employees who are being performance managed to raise complaints of bullying in relation to the increased scrutiny and reviews that they are receiving. This summary of what bullying “isn’t” may be useful in assisting employees to understand the difference between firm management of performance and bullying.
The Guidelines recommend that employers take a number of steps in order to prevent bullying in their workplaces.
These steps include:
• recognising and promoting diversity
• fostering a shared sense of purpose
• developing management standards in relation to appropriate behaviours and communication
• making the workplace’s culture clear through a code of conduct, set of values, and/or “vision statement”
• educating staff
• providing contact and support people (which may include internal as well as external support eg EAP)
The Guidelines include a recommended process for responding to that complaint.
This may include informal inquiries or a formal investigation. The Guidelines emphasise the importance of principles of natural justice in relation to the way any bullying investigation is conducted.
The Guidelines are a useful reminder about the importance of having policies for preventing and managing bullying and responding appropriately to formal bullying
If you don’t already have policies in place, the examples and templates in the Guidelines are a useful starting point, but you need to make sure they are consistent with your employment documentation and other policies relating to disciplinary issues.
If you already have a bullying policy in place, it pays to regularly review that policy and make sure it is current and workable and suits your particular workforce and culture.
These articles and much more available in the latest Update - The Official OSEA Magazine