How can we better manage bullying and discrimination cases with mental health circumstances?

1. How do you contain ongoing complaints of bullying by an employee, when they have been investigated and ruled as reasonable management action or unsubstantiated by an internal investigation?

Workplace investigations can be complex, difficult to navigate and fraught with legal and cultural risk. This can be particularly so in the case of bullying complaints where, even when a complaint is investigated and found to be either reasonable management action or unsubstantiated, the employee is dissatisfied with the outcome and continues to press the issue.

When there are ongoing complaints that have been investigated or resolved, but the employee is simply dissatisfied with the result, an employer should:

• take steps to provide the employee with relevant information associated with the investigation of the complaint (including evidence considered by the investigator) to indicate that the matter is at an end;
• provide written directions in relation to future conduct (this can apply to both the person that is the subject of the complaint and the instigator of the complaint); and
• issue a warning to the employee in relation to any continued complaints that are deemed to be vexatious, including any disciplinary actions that may be taken as a result.

In addition to the above, an employer may also consider conducting a separate external investigation if the employee asserts that the internal investigation has been compromised or tainted by either bias or a lack of transparency, and consequently that it has not been conducted in an objective, fair and thorough manner. It can be difficult to contain an employee’s complaints if that employee feels they have been treated unfairly or that the process was inherently flawed.

Engaging an independent third party to carry out an investigation can assist employers in balancing the interests of all parties to ensure the investigation is not only conducted appropriately, but perceived to be as such. If the outcome of the external investigation accords with the internal investigation (i.e. that the bullying complaints are unfounded), this may assist in satisfying the employee that his or her complaints have been validly heard and investigated. The employer will also be afforded greater protection in the event that the employee seeks to lodge an application for an anti-bullying order with the Fair Work Commission or a complaint with the relevant State anti-discrimination board.

2. How can we better manage bullying and discrimination cases with mental health circumstances (i.e. respondent has depression)?

With respect to mental health issues in the context of bullying and discrimination, it is imperative that employers consider how the employee’s particular illness can be accommodated and whether reasonable adjustments are able to be made to suit the needs of the employee. For example, if an employee has severe depression which impacts on that employee’s ability to perform full-time duties, the employee may be offered flexible working arrangements to assist in the employee’s recovery and ongoing management of their condition.

If there is an issue associated with bullying (for example, the employee’s depression is hampered or to some extent caused by another employee) then proactive steps should be taken to identify and manage the complaint, provide prompt assistance or counselling to the parties and, if necessary, offering changes to the employee’s workplace (e.g. moving the employee to a different area or team).

The key to avoiding claims for bullying conduct and/or discrimination is to:

• ensure communication lines are open. Whether or not an employee chooses to disclose his or her particular condition, the employee should nonetheless be made aware that he/she can confidentiality speak with a member of senior management, and that disclosing the illness will not have an adverse impact on their employment.
• provide flexible working practices (for example, the opportunity to work from home or to work part-time).
• ensure that reasonable adjustments are offered to employees to accommodate the particular needs of the employees (when such adjustments can be facilitated by the employer).
• conduct a risk assessment to identify any weak points or areas for improvement.

The Australian Human Rights Commission has also released a helpful guide on managing mental health issues in the workplace entitled ‘Workers with Mental Illness: A Practical Guide for Managers 2010’.

A copy can be downloaded from the following link – https://www.humanrights.gov.au/our-work/disability-rights/publications/2010-workers-mental-illness-practical-guide-managers.

3. What are the most common issues/trends that have arisen from unacceptable conduct cases?

Unacceptable workplace conduct can include a wide range of behaviours including insulting and abusive language, unlawful discrimination, sexual harassment, bullying, dishonesty, fraud, illegal conduct and excessive gambling, drinking or drug use.

A common issue that arises in unacceptable conduct cases is the lack of, or complacency with, policies which deal with the consequences of inappropriate behaviour in the workplace. If there is no policy in place which clearly outlines the types of behaviours that will constitute inappropriate workplace conduct and the corresponding disciplinary procedures that will apply, there is a greater risk of a systematic breakdown and confusion surrounding accepted workplace practice. A court will also take a dim view of an employer that does not appropriately address and manage issues such as bullying and discrimination through the implementation of appropriate policies and procedures.

Even if an employer has implemented a code of conduct or a policy that deals with acceptable workplace conduct, the employer must be able to demonstrate that it has taken steps to enforce those procedures/policies. The mere existence of a code of conduct or policy will not be sufficient. For example, in the recent case of Johnpulle v Toll Holdings Ltd t/a Toll Transport [2016] FWC 1507 it was found that, even though the employee had engaged in unacceptable conduct (which included making derogatory and discriminatory remarks about Islam), the employer had handled the investigation and corresponding dismissal of the employee poorly because the employer had failed to adhere to formal disciplinary procedures and had been inconsistent in the types of disciplinary action taken against the employee (for example, the employee was not subjected to a formal disciplinary procedure when complaints regarding his behaviour first emerged).

4. How can we better manage unconscious bias?

Unconscious bias is something that innately exists in all of us and which, if not managed appropriately, can give rise to patterns of discrimination which can adversely impact diversity and inclusion in the workplace. It is a particularly difficult issue in the context of the recruitment process, performance reviews and decision-making surrounding promotions.

For an employer, the key steps to reducing unconscious bias in the workplace are to:

• ensure that sufficient training on unconscious bias is provided to employees to lift self-awareness, decrease the application of stereotypes and remind employees of the adverse impact of unconscious bias. It is only when individuals within an organisation are aware of their own unconscious bias that the chain of unconscious bias can be broken;
• ensure there is an established system of communication, through which employees can voice their concerns and employers can respond accordingly;
• implement practices and procedures which promote diversity and inclusion, as opposed to segregation and exclusion. This includes appointing senior leaders and those in managerial positions to act as ‘champions’ for diversity. Change within an organisation generally starts from the top and then resonates downwards. It is senior leaders and managers that have the greatest impact on the cultural environment of an organisation; and
• implement policies which promote flexibility. Workplace culture cannot be inclusive if it does not support different ways of working.

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These detailed answered were provided by Cilla Robinson, Special Counsel and Christy Miller, Special Counsel of Clayton Utz.  

Both Special Counsels were speakers on this topic of bullying and discrimination at the HR Law Masterclass for Sydney and Brisbane, and were cited as being knowledgeable and engaging on the topic.

With over 14 years’ experience, Cilla advises on all aspects of industrial relations, discrimination, workplace health and safety and employment law. Cilla has worked closely with clients in the management of workforces undergoing transformation, offshoring and outsourcing. She has a depth of strategic knowledge relevant to the ongoing imperative to leverage core businesses for new growth. This experience, coupled with her strategic involvement in numerous industrial strategies for both government and private sector clients, is a valued skillset in the management of modern workforces.