Why and how you should implement a workplace anti-bullying policy
ELM: At the recent workshop you ran in Sydney on managing difficult employee behaviours Aaron, I heard you remind the delegates that they should implement a separate workplace anti-bullying policy. What has happened, do you think, to make this necessary, and why?
AARON: In my view, a distinct workplace anti-bullying policy is a measure that businesses should be adopting as “best practice”. The policy should outline, among other things, what is acceptable behaviour and what is not acceptable and may constitute bullying.
A workplace anti-bullying policy is also a very useful guide for employees to inform them about what bullying is and the behaviours involved. It is becoming increasingly common, in my experience, for employees to assert they are being bullied when, in reality, reasonable management action has taken place, such as performance counselling.
This type of policy is something that can also be useful for employers in addressing the concerns of an employee who alleges bullying, whether internally or externally, such as before the Fair Work Commission. The policy can be used by the employer to ascertain:
- what generally constitutes bulling;
- whether the allegations constitute bullying;
- whether the employee has followed the process (ie. complaint procedure) in the policy;
- whether it, as the employer, has followed the process; and
- what action it should take, if any.
ELM: It’s interesting that you mention that the policy should mention what is acceptable, why do you say that?
AARON: I think it goes without saying that workplace participants should, at a minimum, treat one another with courtesy and respect. However, it isn’t necessarily a message that’s reinforced and a workplace anti-bullying policy, along with other relevant policies, should endeavour to do this.
Most workplaces have diverse groups of people working in them, which means that employees may have different views about what is acceptable behaviour and how to conduct themselves at work. It is all very well to say what people can’t do, but sometimes an employer has to inform employees what they can do, such as treating one another in an appropriate manner.
ELM: What do you suggest employers consider when developing this policy?
AARON: Firstly, look at what the legal definition of bullying is. Make sure your policy, as a minimum, incorporates that definition.
Secondly, is there certain conduct that your organisation does not accept? If so, spell it out, ensuring that the unacceptable conduct being defined is reasonable. Encourage a workplace culture that promotes a safe working environment.
Thirdly, make clear and maintain clear procedures for complaints and investigation.
Fourthly, outline what will happen if a complaint is found to have merit, as well as what will happen if a complaint is found to be frivolous or vexatious.
Fifthly, and this is very important, inform all workers about the policy and your expectations for appropriate workplace behaviour through training and education programs that raise awareness on the risks to health and safety as a result of bullying.
ELM: Are there any particular cases readers and delegates can learn from to put this topic of workplace bullying into perspective?
AARON: There are a number of cases that are useful in relation to what constitutes bullying and what does not. One case that was discussed at the workshop, which is very instructive, was Amie Mac v Bank of Queensland Limited; Michelle Locke; Matthew Thompson; Stacey Hester; Christine Van Den Heuvel; Jane Newman  FWC 774.
The interesting thing about this case is that it explores what the employer did in addressing an employee’s performance issues and why its actions did not constitute bullying. It also offers employers a useful guide as the presiding member, Vice President Hatcher, outlines his list of the features of “repeated unreasonable behaviour that constituted bullying at work”.
ELM: What are your top five practical tips in dealing with bullying and harassment issues in the workplace?
- Implement a workplace anti-bullying policy.
- Educate your leadership team about the issues and the policy – get their buy-in. The leadership team’s support of a workplace free from bullying and harassment is vital. A workplace culture is led from the top.
- Educate all staff about:
- what is and isn’t acceptable behaviour; and
- the internal complaints procedure if they have an issue.
- Investigate as soon as possible any complaint of bullying and harassment.
- Finalise any complaint received promptly after an investigation and monitor the situation for a reasonable time afterwards.
About Aaron Goonrey:
Aaron has practised in the areas of industrial relations and employment law since 2001, with his practice covering all aspects of these speciality areas. Aaron appears regularly in employment and industrial relations related proceedings in various courts and tribunals including the Federal Court, the Supreme Court of NSW, Fair Work Australia, the Industrial Relations Commission of NSW, the Anti-Discrimination Board of NSW and the Administrative Decisions Tribunal. He is a Partner at Lander & Rogers in Sydney. Aaron’s areas of expertise include:
- anti-bullying and victimisation;
- industrial relations, including enterprise bargaining and disputes;
- international and local secondments;
- unlawful discrimination;
- the planning of termination of employment strategies, including large and small scale restructures;
- unfair dismissal and termination of employment claims; and
- workplace training.
Aaron was our highest rated training facilitator at the recent Managing Difficult Employee Behaviours workshop. He will join us again at the September HR Law Masterclass Series in September and is currently working with us on developing a workshop specific to the topic of dealing with workplace bullying and harassment.