Workplace bullying 9780409339109, 0409339105

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Workplace Bullying Joseph Catanzariti Keryl Egan

LexisNexis Butterworths Australia 2015

AUSTRALIA

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Catanzariti, Joseph. Workplace Bullying. First edition. 9780409339093 (pbk). 9780409339109 (ebk). Includes index. Bullying in the workplace. Bullying in the workplace — Law and legislation. Conflict management. Egan, Keryl. 658.3145.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Inquiries should be addressed to the publishers. Typeset in Helvetica and Minion. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface For many years bullying has been viewed as an acceptable, if not inevitable, part of life. It often begins in school where very young children, in the process of growing up, learn about social skills, fairness and rules of play. Even in these early years children learn that not everyone plays fair and to survive you either play the bully or you try to fly under the radar. If you were being bullied, your choices were either to toughen up and accept it or become part of the bullying crowd. For some, these options were never on the table due to their personality and thus we see the tragic consequences of bullying, including suicide. It has taken a number of years for bullying in the playground and bullying in school life to finally be acknowledged and rejected as unacceptable. In the last decade or so there has been a growing movement across the globe that bullying at school is not part of the growing up process, that its psychological effects are so damaging that steps need to be taken to eradicate it. Schools have launched massive education programs identifying the harms that can be caused by bullying. To some extent such programs have been successful. On the other hand, the zone of protection afforded by such programs is limited to the strictly controlled school environment—what can’t be supervised becomes the risk factor, particularly given the rise of technologies such as Facebook, Twitter and Snapchat. These new technologies have created new challenges, both in understanding and dealing with bullying. Our focus in this book, however, is not bullying in the school environment. In this book, our focus is bullying in the workplace, which has remained unacknowledged from both a psychological and legal perspective for a

disturbingly long time. It is now recognised that bullying in the workplace is very much a disease of the 21st-century. We see the focus of this book as assisting in education, identification and risk management within the context of workplace bullying. To that extent, a large part of this book is designed in a practical way, combining both the psychology of bullying and the legal consequences and environment within which bullying sits. We also see us as commencing a journey together to reflect on this book. In a few years’ time we anticipate the next edition can in many ways be very different, as stigmas and barriers fade away and the ability of workplaces to properly deal with workplace bullying improves dramatically. At least that is our hope, given that workplace bullying, unlike some other diseases, can be dealt with. Some organisations are committed to accepting, to the long-term benefit of their balance sheets, that workplace bullying exists in all workplaces, and are putting into place systems and mechanisms to identify and then effectively deal with episodes of workplace bullying. It is crucial when dealing with workplace bullying for such initiatives to be wholly supported by the leadership of the organisation. Only those leaders that are committed to dealing with workplace bullying will be able to effect the cultural change required in the workplace to effectively combat workplace bullying. As we examine the different ways of dealing with workplace bullying, we will not necessarily paint a particularly favourable picture of the balance sheet in the short term. Some of the remedies may include the removal from the workplace of an individual who may otherwise be viewed as a highly successful individual. However, in circumstances where workplace rehabilitation is not an option, the benefits of taking such drastic action to prevent workplace bullying can lead to long-term benefits that far outweigh the short-term impact. We invite you to join us on our journey into the complex world of

workplace bullying. We would like to acknowledge the assistance of Timothy Zahara and Shomaice Zowghi in the preparation of this book. Joseph Catanzariti & Keryl Egan August 2015

Acknowledgements Commonwealth Legislation © Commonwealth of Australia This book includes material supplied under licence to LexisNexis by the Commonwealth of Australia, which retains the copyright to that material pursuant to Copyright Act 1968 (Cth). © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Note The publisher, authors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on this publication.

Table of Cases References are to paragraphs AB [2015] FWC 3353 …. 2.9 AN [2014] FWC 6285 …. 2.9 Applicant v Respondent, (unreported, 21 March 2014, (PR548852)) …. 2.12 Appellant v Respondent [2015] FWCFB 1972 …. 2.9 Bassanese [2015] FWC 3515 …. 8.10 Bowker [2014] FWCFB 9227 …. 2.10 CF [2015] FWC 5272 …. 8.11 CF FWC Order (30 July 2015) PR569997 …. 8.11 Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 …. 8.15 GC [2014] FWC 6988 …. 8.10 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 …. 8.15 Haywood [2014] FWC 9444 …. 8.10 Jackson [2015] FWC 402 …. 8.10 Mac [2015] FWC 774 …. 2.8, 8.7 McInnes [2014] FWC 1395 …. 8.3 Obatoki v Mallee Track Health and Community Services [2014] FWC 8828 …. 8.10 Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661 …. 8.10

PK [2015] FWC 562 …. 8.7 Quickenden v O’Connor (2001) 109 FCR 243 …. 8.3 Ravi [2014] FWC 7507 …. 8.10 SB [2014] FWC 2104 …. 2.8, 2.9 Shaw [2014] FWC 3408 …. 8.10 Taminiau and Thomson v Austin Group Ltd PR974223 [2006] AIRC 630 …. 8.12 Tokoda v Westpac Banking Corp (t/as Westpac) [2012] FWAFB 3995 …. 8.15 West v Hi-Trans Express (t/as NSW Logistics Pty Ltd) PR974807 [2006] AIRC 774 …. 8.12 Willis [2015] FWC 3538 …. 2.9 Wright v Australian Customs Services PR926115 [2002] AIRC 1595 …. 8.12

Table of Statutes References are to paragraphs

COMMONWEALTH Constitution 1901 s 51(xx) …. 8.3 Corporations Act 2001 …. 2.2 Fair Work Act 2009 …. 1.1, 2.1, 2.6, 8.3, 8.12 s 14 …. 8.3 s 365 …. 8.10 s 394 …. 8.10 s 544 …. 8.13 s 587(1) …. 8.9 s 587(3) …. 8.9 s 590 …. 2.7 s 593(3) …. 8.7 s 604(1) …. 8.15 s 604(2) …. 8.15 s 611(1) …. 8.14 s 611(2) …. 8.14 s 655 …. 2.11 s 789FC(2) …. 2.7 s 789FD …. 2.8, 2.9, 2.10 s 789FD(1)(a) …. 8.3

s 789FD(2) …. 2.9 s 789FE(1) …. 2.7 s 789FF …. 8.10 s 789FF(1) …. 2.12, 8.10 s 789FF(2) …. 8.11 s 789FG …. 2.12 Sex Discrimination Act 1984 …. 2.5 Work Health and Safety Act 2011 …. 2.2, 2.7, 8.3 s 11 …. 2.2 s 27 …. 2.2 s 28 …. 2.2 Work Health and Safety Regulations 2011 …. 2.2

VICTORIA Crimes Act 1958 …. 2.4 Crimes Amendment (Bullying) Act 2011 …. 2.4 Occupational Health and Safety Act 2004 …. 2.4 s 5 …. 2.2 s 25 …. 2.2 s 144 …. 2.2 Personal Safety Intervention Orders Act Oct 2010 …. 2.4

WESTERN AUSTRALIA Occupational Health and Safety Act 2004 s 20 …. 2.2 s 55 …. 2.2

Contents Preface Acknowledgements Table of Cases Table of Statutes

PART I WORKPLACE BULLYING Introduction Chapter 1 Workplace Bullying Definitional Issues Chapter 2 Legal Risk Chapter 3 The Mechanism of Bullying Chapter 4 Personality, Motivations and Strategies Chapter 5 Contexts, Causes and Consequences Chapter 6 Managing Bullying Chapter 7 Intervention and Prevention Chapter 8 Role of the Fair Work Commission

PART II USEFUL DOCUMENTS Legislation Resources Forms

Index

Detailed Table of Contents Preface Acknowledgements Table of Cases Table of Statutes

PART I WORKPLACE BULLYING Introduction Chapter 1 Workplace Bullying Definitional Issues What is Workplace Bullying? Direct or Indirect Bullying Direct bullying Indirect bullying Conclusion What is not Workplace Bullying? Chapter 2 Legal Risk Introduction Work health and safety laws Workers’ compensation Criminal law Anti-discrimination law Fair Work Act 2009 Preliminary matters under the anti-bullying provisions

Determining whether a worker has been bullied at work ‘Reasonable management action’ exception Bullying ‘at work’ Interaction with WHS Laws Remedies Dismissing employees who engage in bullying conduct Conclusion Chapter 3 The Mechanism of Bullying Introduction Barriers to understanding psychological injury Managing complexity Culture and attitude Entrapment Unconscious bias The healthy self at work: how it should be Basic trust and fundamental assumptions The development of a sense of self The human conceptual system The traumatic impact of bullying Shame and humiliation tactics Tribal tactics Undermining tactics Bullying tactics and depth of psychological injury The impact of direct, overt bullying tactics Indirect, covert and serial bullying Explicit and direct bullying A case of predominantly indirect covert bullying

A borderline bullying scenario Summary Chapter 4 Personality, Motivations and Strategies Introduction Motivations and objectives of bullying The intent to harm Behavioural choice and interpersonal responsibility Is there deliberate intent to harm? Personalities and bullying in the workplace The Dark Triad Narcissism: Its traits and attributes Narcissistic motivation and strategies The machiavellian personality The subclinical psychopathic personality Personality profiles of targets The sense of coherence: Is it a protective factor in targets of bullying? Tips for dealing with bullying personalities General caution when working with individuals Group conflict and mobbing Tips for managing group conflict and mobbing Chapter 5 Contexts, Causes and Consequences Introduction The broader context and global companies Internal organisational factors Organisational coherence and the psychosocial safety climate

Ethical leadership The impact of work characteristics Autonomy and roles in teams at work The interaction of personality, structures and processes Protecting oneself as a leader Personality, motivations and pathways to bullying Machiavellian personalities Narcissistic personalities Subclinical psychopathic personalities Everyday sadism Mobbing Consequences of bullying Consequences for the individual Consequences for the culture Consequences for the organisation Summary Chapter 6 Managing Bullying Introduction Receiving a Complaint Commencing an Investigation: Preliminary issues Internal or external? The purpose of an investigation Conducting an investigation Confidentiality Speed Accuracy Taking evidence

Avoiding bias Emails, text messages and social media Workers’ compensation, stress, sick leave and bullying Commencing sick leave after making bullying allegation Bullying and medical evidence Bullying and workers’ compensation Handling stress leave Proactively eliminating bullying Chapter 7 Intervention and Prevention Introduction Example of an organisation’s response to unethical behaviour Reactive interventions with individuals following a complaint Intervention for the target Intervention for the person who bullies Prevention at the organisational level Useful books on prevention of bullying Assessment tools for psychosocial risk management Planning the interventions The psychosocial safety climate hierarchy of control General considerations on organisational preventions Assessing the facts Finding the links and the structural and cultural gaps The role of managers Managing Individuals: The Dark Triad Recruitment and the Dark Triad Psychological contract and the Dark Triad

Managing high levels of narcissism Recruitment and management of narcissism Managing high machiavellians Managing successful sub-clinical psychopaths Summary Chapter 8 Role of the Fair Work Commission What is the FWC? Jurisdiction of the FWC Processes of the FWC Conciliation conferences Hearings Confidentiality orders Three parties, one dispute Possible Outcomes Before orders can be made Orders Dismissal of application Contravening orders Costs order Appeal process

PART II USEFUL DOCUMENTS Legislation Resources Forms Index

[page 1]

Part I Workplace Bullying

[page 3]

Introduction In this book we will explore both the psychology of workplace bullying, including a number of case studies, as well as the legal environment and the serious consequences of workplace bullying. We are of the view that a direct link needs to be made between the psychology and the law. In the past, a lot has been said about workplace bullying from a psychological perspective and to a lesser extent little if anything has been said about the legal implications of bullying behaviour. We will also look at risk management, conducting investigations and proactive strategies to deal with bullying in the workplace. There are significant problems worldwide with the laws that underpin workplace bullying. Excluding the Australian jurisdiction, which is greatly influenced by the introduction and the amendments to the Fair Work Australia Act 2009 (Cth) which deals specially with bullying, and to a lesser extent the United Kingdom, to date no other country provides a preventive mechanism in relation to workplace bullying. Most laws are predicated on the idea of a particular attribute of an individual that requires protection. Discrimination, rather than bullying, tends to be the trigger point for any relief in those circumstances. Such cases tend to be of a compensatory nature rather than dealing with the underlying behaviours. Systems that merely deal with compensation are not dealing with behaviour, and this is an essential aspect of preventing future bullying. It is also clear that bullying does not have a one size fits all solution. In this book we’ll explore a vast range of bullying behaviours and the vast differences in different types of bullying,

whether it is bullying by peers and managers, subversive bullying or mob bullying. Throughout the book, while we will be referring where appropriate to the Act, we note it does not cover all workplaces. It does however provide a particular mechanism for people who are at work, and where there is a continuing risk of bullying while they are at work. We set out the significant limitations of the legislation. If the Act covered all of the employees within Australia for, example, public sector employees in New South Wales and Queensland among others, this would have a significant benefit in reducing and eliminating workplace bullying. In our experience there has historically been resistance in many organisations to addressing the seriousness of the bullying issue: denial of responsibility and ultimately, liability for damage; and a reluctance to provide resources and authority to HR. [page 4] It may be that the debate around bullying in the workplace has had its origins based on these problems. It is clear that traditionally many organisations have thought of bullying as minor compared to other stressors and therefore do not take it seriously. Such organisations subscribe to the view that bullying is a legitimate way of getting things done and bullying may be cultural with the leaders being bullies. People who have stress injuries from bullying are seen as weak and there is a tendency to blame the targets. To assist in navigating through the book, we have set out below what we hope to achieve from each of the relevant chapters. In Chapter 1, we deal with the definition of workplace bullying. At a

general level, workplace bullying can be defined as unreasonable behaviour directed towards a worker or a group or workers that creates a risk to health and safety. It is important to understand the context of workplace bullying. In this chapter we will look at what amounts to direct or indirect bullying and at what constitutes a workplace. Finally, we will deal with what is not workplace bullying. Our experience to date indicates that a lot of confusion presently exists. Although these are early days of the newly established jurisdiction of the Fair Work Commission, it is clear that there is a pattern emerging where there is a misinterpretation of workplace bullying as to reasonable management action. We will endeavour to highlight the parameters of what is not workplace bullying and what is, in fact, reasonable management action. Far too often, employees use the words workplace bullying as a reaction to something they do not like and it can be as simple as being asked to do their job in a particular way. As they disagree with the management decision, they form the view that creates an unnecessary level of stress and that amounts to bullying. In Chapter 2 we will develop in more detail the legal risks. It is important to note that the legal risks have always existed through health and safety legislation, though not necessarily appropriately addressed. The Fair Work Act adds a new dimension to solving workplace bullying. In Chapter 3 we start with the assumption that people are willing to put time and effort into understanding bullying and working to prevent it. We begin with the process of learning why bullying causes such deep psychological injuries, at times to the point of suicide. Understanding bullying and its consequences will hopefully open minds so that an increased awareness, at the grassroots level, will lead to greater motivation to prevent individual injuries as well the broader outcomes of toxic cultures and business losses. We are aiming for the will and determination to change. In Chapter 4 we first acknowledge the complexity of factors which contribute to workplace bullying. Although there are work conditions and

socioeconomic circumstances which play a part, it is not possible to ignore the role of those individual personalities known to aggressively bully on [page 5] a serial and sometimes predatory basis. Understanding such personalities should help with decisions when recruiting, contracting, promoting and retaining employees. These decisions are critical when trying to adhere to the stated values of an organisation. Knowing what one is dealing with should also provide some consideration of how, if possible, the strengths of such personalities can be employed without exposing others to their damaging maladaptive behaviours. In Chapter 5 we consider the work conditions and socioeconomic circumstances which interact with individual personalities to produce a toxic culture. Which work conditions trigger different types of personalities to bully others are considered and some strategies are outlined for maintaining a healthy workplace culture. In Chapter 6 we discuss how to manage a bullying complaint once it is received. In particular, we deal with the internal and external investigation process, its purpose and appropriate conduct during the investigation. We also explore how bullying relates to overlapping concepts such as workers’ compensation, stress and sick leave. Most importantly, we discuss how organisations can avoid litigation altogether by taking certain critical steps to proactively eliminate bullying. Chapter 7 describes the measures for management and prevention of bullying available at the present time. It is clear however, that the complexity of the phenomenon is still emerging and that integrated approaches to managing and preventing bullying are still developing. It is clear that working with bullying and toxic cultures requires leadership courage and motivation

together with insight, well-crafted strategies and the allocation of resources to craft effective strategies to prevent bullying. In Chapter 8 we deal with the role of the Fair Work Commission. It is noted that, at this stage, the present jurisdiction of the Fair Work Commission is evolving. We are in the very early days in regards to decided cases of the Fair Work Commission and in those circumstances this chapter is prepared with a great deal of precaution, noting that as the jurisprudence develops a lot more will be determined in relation to the width of what does and does not constitute workplace bullying. It is also anticipated that the more complex bullying matters will end up with decisions of the Commission as distinct from the vast number of matters which are otherwise being resolved before the Commission.

[page 7]

Chapter 1 Workplace Bullying Definitional Issues What is workplace bullying? [1.1] Workplace bullying is ordinarily repeated, unreasonable behaviour directed towards a worker or a group of workers at work that creates a risk to health and safety. ‘Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range behaviours over time. ‘Unreasonable behaviour’ means behaviour that a reasonable person, having regard to all of the circumstances, would see as victimising, humiliating, undermining or threatening. Mostly, we are focusing on repeated behaviour, although in limited circumstances one isolated act of bullying could have significant deleterious effects upon a worker. When we look at the various types of bullying behaviour it will be clear that one isolated act may have the same effect as repeated behaviour. A ‘risk to health and safety’ means a real possibility of danger to health and safety and is not confined to actual danger to health and safety. The emergence of social media as a medium through which workplace bullying can occur has widened the scope of being ‘at work’ for the purposes of the Fair Work Act 2009 (Cth). For an in depth discussion of what constitutes being ‘at work’ please see Chapter 2 at 2.10.

Direct or indirect bullying Direct bullying [1.2] Direct bullying is behaviour that is, of itself, capable of causing a person to feel victimised, humiliated, undermined, disparaged, threatened or ostracised. Examples of direct bullying include behaviours or language that is frightening, humiliating, belittling or degrading. More examples include: displaying offensive material; spreading misinformation or malicious rumours; abusive, insulting or offensive language; [page 8] inappropriate comments about a person’s appearance, lifestyle or their family; teasing or regularly making someone the brunt of pranks or practical jokes; interfering with a person’s personal property or work equipment; or harmful or offensive initiation practices.

Examples of direct bullying Spreading misinformation or malicious rumours: Sally is an employee not well liked by a co-worker Fran. Fran has told her work colleagues that the reason Sally looks fit and healthy is really is a consequence of her weekend drug addiction. Fran knows that this information is untrue and deliberately spreads those rumours in order to make Sally feel uncomfortable in the workplace. Behavioural language that frightens, humiliates, belittles or degrades: Jim continuously yells at Bill in the workplace. Jim thinks that it is bravado. The degradation has created a culture of fear, forcing Bill to act in inappropriate ways, including by approving expenses relating to Jim which would otherwise be outside of company limits. The yelling and screaming by Jim has taken a toll on Bill’s health and Bill has increased the number of sick

days he has been taking. Recently, senior management has been considering whether or not to disengage Bill. Harmful or offensive initiation practices: Georgina’s work team has been together for a long time. They were very concerned that Georgina was relocating from the Records and Management team to become an assistant in the People and Culture Department. The People and Culture Department is a very close-knit team and has a language of its own. This team is also resistant to change and any new recruit is ‘road tested’. On Georgina’s first day in this team, and throughout her first few weeks, the team played, what they believed to be, harmless initiation practices or pranks on Georgina. These included putting sticky tape on her chair, which resulted in a rip in her trousers, creating the appearance of a virus on the desktop of her computer and interfering with the wallpaper on her computer. Georgina attempts to take the matters in her stride, but eventually the behaviours consume too much of Georgina’s energy and she is forced to take time off work due to sickness. Displaying offensive material: Shaun arrives at his office desk and to his surprise finds pornographic magazines placed face up on his chair. He was shocked on many levels and simply disposed of the magazines. Two days later further pornographic magazines are left on his chair. Shaun is very shaken by the experience. Inappropriate comments about a person’s appearance, lifestyle or their family: Angela is a single mother of three children. Angela looks after the children with little to no help and this is something she is proud of. Apart from her closest friends in the workplace, Angela does not choose to comment about this aspect of her life with others. On Thursday, Angela arrives at work to find offensive material in relation to single mothers at her workstation. [page 9] The materials had comments on them including ‘single mother’s rip-off’. Angela is very distraught about who would leave such materials on her desk. Samuel is well known for being a flamboyant dresser in the workplace. A number of team members think that some of his outfits are sexual, when in fact that isn’t correct. They then target him with offensive jokes and inappropriate email communication. Leslie is a homosexual and he chooses to keep his private life away from the workplace. He has been in a long-term relationship with his partner Philip. Leslie has elected not to bring Philip to any work functions. Another team member found out about this relationship and decided to broadcast it to other members of the team. This leads to a barrage of harassment in relation to why he doesn’t bring his mysterious partner to any work functions. Over time, he becomes distraught by the persistent bullying that has occurred.

Indirect bullying

[1.3] Indirect bullying is behaviour that, if taken in isolation, would not necessarily cause concern but when considered in the context of a broader pattern of behaviour, could amount to bullying. Examples of indirect bullying include: unreasonably overloading a person with work or not providing enough work; setting timelines that are difficult to achieve or constantly changing deadlines; setting tasks that are unreasonably below or beyond the person’s skill level; deliberately excluding, isolating or marginalising a person from normal work duties; withholding information that is vital for effective work performance; deliberately denying access to information, consultation or resources; deliberately changing work arrangements, such as rosters and leave, to inconvenience a particular worker or workers; or unfair treatment in relation to accessing workplace entitlements such as leave or training.

Examples of indirect bullying Unreasonably overloading a person with work or not providing enough work: Jane really doesn’t like Sally, so she sets out to give Sally an excessive workload, which she knows could not be completed by her and is beyond Sally’s job description. Over time this can amount to bullying behaviour. [page 10] Setting tasks that are unreasonably below or beyond the person’s skill level: Samantha told her current boss Jonathan that she had been promoted to a senior executive. Jonathan is very unhappy about Samantha’s promotion and decides to engage in the behaviour of giving her work that is way below her skill set. At a team meeting, Jonathan

calls Samantha in to ask if she can make cups of tea for the other team members. At this time he chooses to embarrass her in front of the team by making a comment about being promoted and still making cups of tea. Deliberately excluding, isolating or marginalising a person from normal work duties: The work group often has work functions. Bill notices that he is not on the invitation list for most of those functions. At first he thinks it is because these functions are not work-related. However, it becomes apparent at meetings that a lot of the work that the work group is discussing, has been discussed at these work functions that Bill is excluded from. Withholding information that is vital for effective work performance: Rachael realises that she is struggling to complete the work on projects that have been allocated to her due to lack of information. Percy thinks this is a consequence of her inability to find creative solutions. Over time, Rachael realises that on a number of occasions she has been given incomplete instructions or insufficient resources to complete the projects. As a consequence, this has made her look stupid in front of others due to everyone else having the appropriate information needed.

Conclusion [1.4] As can be seen from the above examples, bullying can be direct or indirect. It also can be seen to be intentional or unintentional. Regardless of whether the bully’s actions are intended to cause harm, the impact on the worker is the relevant consideration. Bullying can also be unintentional, where the person’s actions were not intended to humiliate, offend or distress but should reasonably have been expected to have that effect. In a number of these cases, the person engaging in the bullying behaviour is unable to distinguish between the behaviour that is reasonable and behaviour that can cause harm, believing that his or her behaviour is merely harmless fun. It is not uncommon in such instances for the perpetrator to struggle to understand why his or her behaviour has been classified as bullying. Bullying can be directed at a single worker or a group of workers and can be carried out by more than one worker. While bullying will generally involve an unequal power relationship, it is not always the case that the relevant

power relationship aligns with the workers’ hierarchical position within the organisation. Thus, bullying can include: downwards bullying — from managers to workers. For example, a manager or supervisor in a position of power may have a management style that seems to be strict or disciplinary, when in fact it is bullying. [page 11] The manager or supervisor hides behind his or her behaviour, claiming to be behaving in a disciplinary fashion, but when considered objectively the consequences of their behaviours are harmful. sideways bullying — between workers or co-workers. For example, a coworker seeking to enhance his or her position or sense of power in the workplace. Interestingly enough, the growth of sideways bullying in recent times is the most common. In many ways this is the sort of bullying that a person experiences in the school playground between students. It is not uncommon to see co-workers bullying each other simply because they find some humour in attacking another co-worker in front of the team. upwards bullying — from workers to supervisors or managers. For example, a number of workers bully their manager or supervisor with the sole intention of trying to drive him or her out of the workplace. Upwards bullying: Steven has recently been appointed as the head of the project team. Steven is young, enthusiastic and full of ideas. He is seen as a threat to the existing team as he has high performance standards and is highly ambitious. He believes his team can make a difference and he sets out his vision statement. After a team meeting once Steven has left, the team forms a view that what Steven had proposed required too much work and would take a lot of fun out of the team that they had enjoyed with the previous leadership. With group numbers on their side, the team embarks upon a strategy of making sure that Steven is embarrassed in front of his superiors. The team withholds important information from Steven with the sole purpose of embarrassing him in front of his superiors. They also isolate Steven and engage in political manoeuvring to weaken Steven’s position in the

company. Steven attempts a number of different tactics in order to engage with his team, but they all appear to be unsuccessful. Steven is eventually forced to leave the organisation as his performance plummets.

What is not workplace bullying? [1.5] Many things that happen at work are generally not considered to be bullying, although some experiences can be quite uncomfortable for those involved. An average workplace involves a significant amount of interaction between various individuals, either through electronic means or face-to-face. This interaction can result in discomfort when personalities clash, but this does not necessarily constitute bullying. Reasonable management action, carried out in a fair way, is also not bullying. Managers have a right to direct the way that work is carried out and to monitor and give feedback on performance, but the way that this is done is a risk factor in determining the likelihood of bullying occurring. [page 12] What then is reasonable management action? Reasonable management action can include: setting reasonable performance goals, standards and deadlines in consultation with workers; allocating work to workers in a transparent way; fairly rostering and distributing worker hours; the relocation of the worker for a legitimate and explained operational reason; deciding not to select a worker for promotion following a fair and

documented process; informing a worker about unsatisfactory performance; informing a worker about inappropriate behaviour; proper implementation of organisational changes or restructuring; or performance management processes. For a detailed discussion of what is and is not reasonable management action please refer to Chapter 2 at 2.9.

[page 13]

Chapter 2 Legal Risk Introduction [2.1] Until recently, there was no legal principle in Australia that sought to address workplace bullying as a discrete issue. As a result, the regulation of workplace bullying was largely found at the edges of a number of disjointed legal frameworks, including work health and safety (WHS), workers’ compensation, criminal law, anti-discrimination, industrial relations and contract law. On Monday 26 November 2012, the House of Representatives Standing Committee on Education and Employment tabled its report on the inquiry into workplace bullying entitled: Workplace Bullying ‘We just want it to stop’. Following this report, the Federal Government amended the Fair Work Act 2009 (FW Act) to provide a specific cause of action for workers who have been bullied at work. This chapter will first consider the various avenues that are available to workers outside of the Fair Work Commission’s new anti-bullying jurisdiction before continuing to consider the Fair Work Commission’s antibullying jurisdiction. It is important to note that an employer’s legal risk is not confined to liability arising from the bullying conduct itself. A common concern for employers is their exposure to risk if they proceed to terminate the employment of an employee who has been found to be engaging in bullying conduct. This chapter will conclude with a discussion of the issues that arise in this circumstance and how this risk can be effectively minimised.

Work health and safety laws [2.2] Work health and safety (WHS) law falls within the jurisdiction of the state and territory governments, with the exception of certain workers who are covered by Commonwealth WHS legislation. By 1 January 2013, the Commonwealth, Queensland, New South Wales, the Australian Capital Territory, the Northern Territory and South Australia had all enacted a uniform WHS framework. These jurisdictions adopted the model Work Health and Safety Act 2011 (Cth), along with the model Work Health and Safety Regulations 2011 (Cth), in an ongoing effort to harmonise WHS laws in Australia. [page 14] Despite the lack of national uniformity, all of Australia’s WHS laws share a common set of fundamental principles. Officers and persons in control of a business or undertaking (PCBU) have an obligation to ensure, as far as reasonably practicable, the health and safety of their workers while they are at work. Similarly, workers are required to take reasonable care that their acts or omissions do not adversely affect other workers, and to comply with the health and safety requirements at the workplace. The Model WHS legislation explicitly includes psychological health in its definition of ‘health’, as does the Victorian legislation.1 These broad definitions make it clear that the PCBU has a duty to ensure that workplaces are safe environments, and to the extent that workplace bullying is inimical to that objective, it will come within the scope of the WHS legislation. In addition to liability imposed on a PCBU, all Australian WHS legislation will make an officer of a PCBU personally liable if the employer fails to meet its WHS obligations.2 A PCBU is defined broadly in the WHS legislation to cover most business structures including a sole trader, company, partnership

or association. Both the Model WHS legislation and the Victorian legislation define ‘officer’ with reference to the Corporations Act 2001 (Cth), as a person who is involved in high-level decision making within a company. Notably, and uniquely, the Model WHS legislation imposes a positive obligation on officers to exercise due diligence to ensure that the requirements of the Act are met. Duties are also imposed on workers to take reasonable care when at work to avoid adversely affecting the health and safety of other people.3 Workers who have been injured at work, including as a result of bullying, have no recourse outside of making a complaint to a WHS regulator. Once a WHS regulator receives a complaint from a worker, it may choose to conduct an investigation into a workplace. If a breach is found, WHS regulators have two methods of enforcement: compliance notices or prosecution. Various criminal penalties apply to breaches of WHS laws and both individuals and organisations can be convicted.

Workers’ compensation [2.3] Australia’s workers’ compensation framework operates in parallel to its WHS laws. Where WHS laws are concerned with imposing duties on individuals and organisations to ensure safety in the workplace, workers’ compensation allows workers to be compensated for injuries suffered in the workplace. A worker will be entitled to workers’ compensation regardless of whether or not his or her employer is responsible for the injury — it is only [page 15] necessary to establish that the injury occurred in the course of employment and they are an employee and not an independent contractor. However, although workers’ compensation laws provide for physical and

psychological injuries, workers often find it difficult to satisfy their employer’s workers’ compensation insurer that their psychological injury occurred in the course of employment. While workers are able to approach a relevant court to challenge these findings, this can be a difficult and daunting prospect for a worker, particularly while also dealing with a psychological injury. If a worker is successful in receiving workers’ compensation for a psychological injury received due to workplace bullying, no order will be made against an employer or the perpetrators of the bullying. Workers’ compensation is solely concerned with providing workers with financial compensation.

Criminal law [2.4] No Australian jurisdiction explicitly criminalises workplace bullying. However, some serious instances of bullying will constitute criminal offences. In 2011, the Victorian Government enacted ‘Brodie’s Law’ in response to the highly publicised case of Brodie Panlock. In September 2006, 19 year old Brodie committed suicide after enduring relentless bullying by her coworkers at a café in Hawthorn. The tragedy of Brodie’s death was compounded by the fact that none of those responsible for bullying Brodie could be charged with a serious criminal offence under the Crimes Act 1958 (Vic). Instead, each offender was convicted and fined under provisions of the Occupational Health and Safety Act 2004 (Vic). In response to the legal limitations in prosecuting conduct involving serious bullying, Brodie’s Law4 amended the Crimes Act 1958 (Vic) in order to expand the list of behaviours that will constitute ‘stalking’ to include: making threats to the victim; using abusive or offensive words to, or in the presence of, the victim; performing abusive or offensive acts in the presence of the victim;

directing abusive or offensive acts towards the victim; or acting in any other way that could reasonably be expected to cause a victim to engage in self harm. Brodie’s Law also amended the Personal Safety Intervention Orders Act 2010 (Vic) to allow a person who has alleged that he or she is the victim of stalking to apply to obtain certain orders against the alleged perpetrator. While no other state or territory goes as far as Victoria, there are a number of criminal offences that may be relevant to serious instances of workplace bullying, for example assault. These offences do not necessarily pose a source of legal risk to employers. However, employers should be [page 16] aware of both their options and their obligations if an employee or group of employees is found to have engaged in bullying conduct of a sufficiently serious nature.

Anti-discrimination law [2.5] Anti-discrimination legislation has a limited role to play in the context of workplace bullying. If the bullying behaviour, or the reason for the bullying, can be linked to a relevantly protected trait then the subject of the bullying may have a remedy pursuant to either state or federal antidiscrimination legislation. For example, a worker who is bullied because she is the only female in a particular team would likely have a remedy under the Sex Discrimination Act 1984 (Cth). Federal anti-discrimination laws cover the following attributes: race (including attributes such as colour, descent and national or ethnic

origin); that a person has been, or is, an immigrant; sex; marital status; pregnancy or potential pregnancy; breastfeeding; family responsibilities; disability (including carers and associates); and age. The Commonwealth anti-discrimination legislation applies to every person in Australia. The states each have their own anti-discrimination legislation which generally provides additional protected attributes, such as sexual orientation, gender identity, religious activities or criminal records. The precise attributes that are protected vary between the different states. It should be noted that employers are exposed to legal risk in the form of an indirect discrimination claim. Indirect discrimination occurs when a person imposes a condition, requirement or practice that has the effect of disadvantaging a person with a protected attribute. For example, an employer with a practice of allowing free access to employees’ personal information could be found to have indirectly discriminated against that employee if the employee is bullied as a result of other employees discovering information relating to ethnicity, marital status, gender identity, or some other protected attribute.

Fair Work Act 2009 [2.6]

On 1 January 2014, the Fair Work Commission’s anti-bullying

jurisdiction commenced operation. As mentioned above, the anti-bullying provisions of the FW Act were introduced as a result of the Workplace [page 17] Bullying ‘We just want it to stop’ Report. With the commencement of this jurisdiction, workers are able to apply to the Fair Work Commission for orders to stop bullying in the workplace.

Preliminary matters under the anti-bullying provisions [2.7] The bullying provisions of the FW Act are expressed so as to apply to workers, which is defined by reference to the definition of ‘worker’ in the Work Health and Safety Act 2011 (Cth). This broad definition does not only cover employees, but covers an individual who performs work in any capacity. For example, a volunteer would likely fall within the definition of a ‘worker’, despite not being an employee of an organisation. This aligns with the overarching ideology of the amendments, which considers workplace bullying a WHS issue,5 and thus appropriate to apply to both employee and non-employee workers. There is, however, a specific exception for Australian Defence Force members, who are entirely excluded from the bullying jurisdiction.6 In addition to satisfying the definition of ‘worker’ in the Work Health and Safety Act 2011, an applicant must have been at work in a ‘constitutionally-covered business’ in order to meet the jurisdictional requirements necessary to make an application under this regime.7 Unlike some of the remedies provided for in the FW Act, there is no time limit in relation to bringing an application under the anti-bullying regime. However, once an application is made, the Fair Work Commission (FWC) has only 14 days to start dealing with the application.8 A note in the

legislation clarifies that starting to ‘deal with’ an application might, for example, entail the FWC beginning to inform itself under s 590 of the FW Act, which it might do by conducting inquiries or holding a conference or hearing.

Determining whether a worker has been bullied at work [2.8] Section 789FD of the FW Act sets out the criteria for establishing whether a worker has been bullied at work. There are two elements to making out a bullying complaint.9 First, the applicant must establish that while at work, an individual or group of individuals repeatedly behaved unreasonably towards the worker, or a group of workers of which the applicant is a member. It is important to note that the section applies to the conduct of individuals, not just employees. Thus, the employer’s duty to create a safe workplace is not limited to managing and monitoring the conduct of employees within the workplace, but all individuals with whom a worker may come into contact while at work. [page 18] In the matter of SB, Commissioner Hampton made the following comments about the concept of repeated unreasonable behaviour: Having regard to the approach urged by the authorities, the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs. Unreasonable behaviour should be considered to be behaviour that a reasonable person, having

regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.10

The second factor in establishing that a worker has been bullied at work is that the conduct must have created a risk to health and safety. It is important to note that the conduct must only create a risk to health and safety; it does not necessarily have to already have had an effect on the worker’s health and safety. This is significant as it underscores the primary objective of the regime — to provide a proactive means by which bullying can be prevented before it causes serious harm. Commissioner Hampton made the following comments about this requirement in SB: The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here. A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety. The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss. In the sense used in this provision, the risk must also be real and not simply conceptual.11

In the recent matter of Mac v Bank of Queensland, Vice President Hatcher listed some features which may be found in a course of repeated unreasonable behaviour that constitutes bullying at work. The list is obviously not exhaustive but provides some guidance on the issue: … intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination.12

[page 19] The FWC has also released an Anti-Bullying Bench Book, which contains a comprehensive overview of the new provisions.13 The Bench Book identifies a

number of examples of bullying, taken from cases heard in other jurisdictions. These examples include: aggressive and intimidating conduct; belittling or humiliating comments; victimisation; spreading malicious rumours; practical jokes or initiation; exclusion from work-related events; and unreasonable work expectations.

‘Reasonable management action’ exception [2.9] While the phrase ‘behaved unreasonably towards [a] worker’ is necessarily broad, an exception is explicitly carved out by way of clarification with respect to ‘reasonable management action carried out in a reasonable manner’, with s 789FD(2) clarifying for the avoidance of doubt that such action does not constitute bullying at work. The Explanatory Memorandum to the Fair Work Amendment Bill 2013 explains that the allocation of work or the process of providing feedback to workers is not considered bullying ‘if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated’.14 The FWC Anti-Bullying Bench Book sets out some examples of what may constitute management action as follows: performance appraisals; ongoing meetings to address underperformance; counselling or disciplining a worker for misconduct;

modifying a worker’s duties including by transferring or re-deploying the worker; investigating alleged misconduct; denying a worker a benefit in relation to their employment; and refusing an employee permission to return to work due to a medical condition.15 Determining whether or not an action will constitute ‘reasonable management action’ for the purposes of the FW Act is not an easy exercise. Commissioner Hampton made fairly extensive comments about [page 20] the issue in his decision in SB, above, and despite their length it is worth setting them out here as the Commissioner’s comments are likely to have a significant impact on the manner in which the FWC interprets these provisions: Behaviour will not be considered to be bullying conduct if it is reasonable management action carried out in a reasonable manner. Section 789FD(2) of the FW Act is not so much an ‘exclusion’ but a qualification which reinforces that bullying conduct must of itself be unreasonable. It also emphasises the right of management to take reasonable management action in the workplace. In its application, the provision comprises three elements: the behaviour (being relied upon as bullying conduct) must be management action; it must be reasonable for the management action to have been taken; and the management action must have been carried out in a manner that is reasonable. The Explanatory Memorandum refers to management decision and decisions about how work is to be carried out. This suggests that the term may be required to be given a wide meaning under s 789FD(2) and that the Legislature intended everyday actions to effectively direct and control the way work is carried out to be covered by the exclusion. Determining whether management action is reasonable requires an objective assessment of the

action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include: the circumstances that led to and created the need for the management action to be taken; the circumstances while the management action was being taken; and the consequences that flowed from the management action. The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant. The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that: management actions do not need to be perfect or ideal to be considered reasonable; a course of action may still be ‘reasonable action’ even if particular steps are not; to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’; any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and

[page 21] consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. For the circumstances in s 789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one. Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.16

It is important to note that what may constitute reasonable management action in one situation may not constitute reasonable management action in another. There is no one-size-fits-all solution that will be suitable for all situations.

In the recent case of AB, Commissioner Lee rejected a long-serving employee’s bullying claim, after accepting that her employer took reasonable management action where it performance-managed her after she resisted changes to workplace practices.17 In this case, the employer had shifted from ‘a long period of moribund management’ to becoming more ‘performance focused’.18 The employee making the bullying claim was forced to adjust to a more active management style and increases to her workload. The Commissioner adopted the reasoning set down in SB, above, and found that while the change in management style and the organisation’s increase in work intensity had a personal impact on the employee, there was no evidence that the approach taken amounted to bullying behaviour directed at the employee. Rather, the evidence indicated it was reasonable management action and a necessary approach adopted in order for the organisation to survive financially. In AN,19 a senior employee alleged what Senior Deputy President Drake described as ‘malevolently motivated micromanagement of his performance’ by a manger, which was unrestrained by senior management in order to bully him and bring about the termination of his employment.20 The employer claimed that the employee was underperforming at his level and the alleged bullying was actually performance management, which included the implementation of a Practice Incentives Program (PIP). The Senior Deputy President noted that she was not required by the Act to investigate all of the background to the performance concerns and make findings about each of those occasions. Rather, she was required to assess objectively, whether the evidence constituted bullying behaviour and, in [page 22] that context whether it comprised no more than reasonable management action carried out in a reasonable manner. The Senior Deputy President

found that the evidence before her demonstrated an ‘ordinary exercise of management prerogative’ which was done in an ‘ordinary fashion’ and that this did not amount to bullying.21 The decision was appealed to a Full Bench of the Commission in Appellant v Respondent.22 The Full Bench validated the Senior Deputy President’s approach and refused permission to appeal. Conversely, in Willis23 Commissioner Lewin found that the behaviour of two managers who arrived unannounced and berated a new employee before initiating disciplinary proceedings constituted bullying under s 789FD of the Act. The Commissioner rejected the employer’s contention that the actions constituted reasonable management action carried out in a reasonable manner and noted that the conflation of performance management and disciplinary action within the employer’s management policy was part of the problem.24 Although the Commissioner ultimately declined to make an antibullying order against the employer, as its recent careful attention to procedural fairness made it unlikely there would be a continued risk of bullying, the case is an important early indication of the sorts of employer behaviour that will not be found to constitute reasonable management action. For larger organisations, often the consistent application of reasonable, sensible and practical policies will assist in ensuring that management’s actions are considered reasonable in the circumstances. That said, however, it is entirely possible that a manager who strictly applies an unreasonable policy, or applies a policy in an unreasonable fashion, will fail to convince the FWC that they have taken reasonable management action.

Bullying ‘at work’ [2.10] In order for the FWC’s jurisdiction to be enlivened, the worker must have been bullied ‘at work’. This is an important distinction, as determining what is and is not ‘at work’ has proven to be a difficult line to draw in the context of the modern workplace, particularly in the age of social media.

In the case of Bowker, a Full Bench of the FWC considered whether or not certain conduct that took place on social media constituted bullying ‘at work’ for the purposes of the anti-bullying provisions of the FW Act. In this case, the applicants relied on a number of different incidents, including various phone calls and social media posts. The respondents sought for a number of these incidents to be struck from the application, on the basis that they could not constitute bullying ‘at work’. The issue of what will constitute bullying at work was referred to a Full Bench to determine. [page 23] The starting point of the Full Bench’s analysis was the text of the legislation, which provides that a worker is bullied at work if, while the worker is at work in a constitutionally-covered business, an individual or a group of individuals repeatedly behaves unreasonably towards the worker or a group of workers of which the worker is a member and that behaviour creates a risk to health and safety.25 The Full Bench found that the legislative definition clearly creates a temporal connection between the bullying conduct and the worker being at work.26 The Full Bench found that determining what was meant by the phrase ‘at work’ was more problematic. The Full Bench rejected a proposition put by the applicants that conduct occurs ‘at work’ if it has ‘a substantial connection to work’,27 and found as follows: We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie, the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day. As we have mentioned, the focal point of the definition is on the worker (ie, the applicant). The individual(s) who engage in the unreasonable behaviour towards the worker need not be ‘at work’ at the time they engage in that behaviour … It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or

permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work) … In most instances the practical application of the definition of ‘bullied at work’ in s 789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work-related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract.28

In the context of social media, the Full Bench concluded that it was not necessary for the person who makes the post (the alleged bully) to be at work at the time the posts are made. Nor is it necessary for the target to be at work at the time the post is made. It is sufficient that the posts are accessed while the target is at work. If the target does not access the posts while at work, however, the conduct will not constitute bullying at work.29 [page 24] Employers must be cognisant of this definition of ‘at work’ when making policies around bullying and social media. Given that the anti-bullying jurisdiction is still in its infancy, there are a number of unresolved issues. For example, if an employer has a workplace policy that prohibits social media use at work, but an employee nevertheless accesses social media while at work and is exposed to bullying conduct, will this constitute bullying at work? The Full Bench also raised the issue of whether the FWC’s jurisdiction would be enlivened by bullying conduct on social media from a person who had no workplace connection with the applicant that was accessed while at work. The Full Bench found that it did not need to form a concluded view on this point, but that it doubted that such an outcome was intended by the legislature.30

Interaction with WHS laws

[2.11] The FWC’s powers in respect of holding conferences and hearings in relation to bullying matters are very similar to the FWC’s existing powers to inform itself as it considers appropriate and to hold such hearings and conferences as it considers necessary. However, the FWC is specifically empowered to refer a matter to a work health and safety regulator when it considers that this is necessary and appropriate.31 Referring the matter to a WHS regulator does not mean, however, that the FWC will not deal with the matter.

Remedies [2.12] The remedies that are available under this regime are quite broad, with the FWC empowered to make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group’.32 This remedial regime makes it clear that the purpose of the bullying jurisdiction is to proactively deal with bullying in the workplace, rather than impose penalties or provide compensation after the event. The only substantive bullying orders that have been made by the FWC, after 12 months of the jurisdiction’s operation, are orders that were agreed to by the parties. The orders are illustrative, however, of the scope of the orders that the FWC can make in order to stop bullying. The background against which the orders were made is not known, but the following orders were made by Senior Deputy President Drake against the person alleged to have engaged in bullying (who was not identified in the order): The employee must complete any exercise at the employer’s premises before 8:00 am. The employee must have no contact with the applicant alone. [page 25]

The employee must make no comment about the applicant’s clothes or appearance. The employee must not email or text the applicant except in emergency circumstances. The employee must not raise any work issues without notifying the CEO, or his subordinate, beforehand.33 The applicant was also ordered not to arrive at work prior to 8:15 am. These orders show that the FWC has the power to find novel solutions to issues of workplace bullying. However, it is also important to remember that while such orders may not resemble the types of orders that a court might make, significant penalties still apply for non-compliance.34 At the time of writing, the maximum pecuniary penalty for an individual was $10,200 and $51,000 for a body corporate. It is important to note that orders made under the bullying jurisdiction are not intended to ‘punish’ workers or employers who engage in bullying conduct. The sole purpose of an order made under this jurisdiction is to ‘prevent the worker from being bullied at work by the individual or group’. This is relevant because it is possible that an employer who is not at fault, so to speak, can have an order made against it on the basis of bullying conduct of which it was not aware.

Dismissing employees who engage in bullying conduct [2.13] It is common for employers to feel apprehension about dismissing an employee who has been engaging in bullying conduct, particularly in circumstances where the bully is a high performer. An employer must take care in order to avoid liability for unfair dismissal. In situations where the bullying conduct is sufficiently serious to warrant summary dismissal, for

example where there is clearly a serious and imminent risk to the health and safety of another worker, employers should act quickly and decisively. It is important to act consistently — a worker’s performance should not be a relevant consideration if the reason for his or her dismissal is solely based on health and safety reasons. More difficult, however, is the scenario where an employer wants to terminate an employee but summary dismissal is not warranted. In these circumstances, the employer must be careful to ensure that the employee is made aware of the conduct that is not acceptable and must be given an opportunity to rectify the conduct. It is essential that the employee be told that if they do not rectify this conduct that they may be terminated. Small business should be aware of the Small Business Fair Dismissal Code. This Code applies to businesses with fewer than 15 employees. A small business that complies with the Code will effectively have a full [page 26] defence against an unfair dismissal claim. The Code is not excessively long and it is worth reproducing in full here: Summary dismissal It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report. Other dismissal In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee

with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations. Procedural matters In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.35

The Code is also accompanied by a Checklist, which serves as a useful tool to help small business employers assess and record their reasons for dismissing an employee and comply with the Code. The processes outlined in the Small Business Fair Dismissal Code are, by and large, equally applicable to larger organisations. [page 27]

Conclusion [2.14] Workplace bullying constitutes a very real source of legal risk for employers, no matter how big the organisation is or how many employees are employed. While the variety of sources of legal risk can seem like a lawyer’s picnic, the reality is that the best way for an employer to manage risk is to ensure that the proper procedures and processes are in place to minimise psychosocial risk and to improve employee health and well-being. _______________ 1

Work Health and Safety Act 2011 (Cth) s 11; Occupational Health and Safety Act 2004 (Vic) s 5.

2

Work Health and Safety Act 2011 (Cth) s 27; Occupational Health and Safety Act 2004 (Vic) s 144; Occupational Safety and Health Act 1984 (WA) s 55.

3

Work Health and Safety Act 2011 (Cth) s 28; Occupational Health and Safety Act 2004 (Vic) s 25; Occupational Safety and Health Act 1984 (WA) s 20.

4

Crimes Amendment (Bullying) Act 2011 (Vic).

5

See, eg, Fair Work Amendment Bill 2013 (Cth) (Revised Explanatory Memorandum) pp 12–13; House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We Just Want it to Stop (2012) p 189.

6

Fair Work Act 2009 (Cth) s 789FC(2).

7

The meaning of a ‘constitutionally-covered business’ is discussed in detail in Chapter 8 at 8.3.

8

Fair Work Act 2009 (Cth) s 789FE(1).

9

Fair Work Act 2009 (Cth) s 789FD.

10

SB [2014] FWC 2104 at [41], [43].

11

SB [2014] FWC 2104 at [44]–[45] (References omitted).

12

Mac [2015] FWC 774 at [99].

13

FWC, Anti-Bullying Bench Book available at .

14

Explanatory Memorandum to the Fair Work Amendment Bill 2013 (Cth) cl 112.

15

FWC, Anti-Bullying Bench Book, above fn 13, p 36.

16

SB [2014] FWC 2104 at [46]–[53] (References omitted).

17

AB [2015] FWC 3353.

18

AB [2015] FWC 3353 at [69].

19

AN [2014] FWC 6285.

20

AN [2014] FWC 6285 at [18].

21

AN [2014] FWC 6285 at [22].

22

Appellant v Respondent [2015] FWCFB 1972.

23

Willis [2015] FWC 3538.

24

Willis [2015] FWC 3538 at [9].

25

Fair Work Act 2009 (Cth) s 789FD.

26

Bowker [2014] FWCFB 9227 at [32].

27

Bowker [2014] FWCFB 9227 at [46].

28

Bowker [2014] FWCFB 9227 at [48], [51 and [53].

29

Bowker [2014] FWCFB 9227 at [55]–[56].

30

Bowker [2014] FWCFB 9227 at [57].

31

Fair Work Act 2009 (Cth) s 655; Anti-Bullying Bench Book, above fn 13, p 40.

32

Fair Work Act 2009 (Cth) s 789FF(1).

33

Applicant v Respondent, (unreported, 21 March 2014, (PR548852)).

34

Fair Work Act 2009 (Cth) s 789FG.

35

Available from the Fair Work Ombudsman website at .

[page 29]

Chapter 3 The Mechanism of Bullying Introduction [3.1] Repeated workplace bullying over time leads to psychological injury in individual targets, often with severe psychological symptoms, physical illness, disablement and sometimes death. This is readily observable.1 Although most people intuitively understand that being bullied is a painful experience, there are many, often in powerful positions, who do not understand why it results in such serious injury. Reasonable people, once they understand a problem, have the motivation to address it actively. Understanding the seriousness of workplace bullying is, therefore, the first step towards change in the workplace. This chapter integrates bodies of research in clinical and social psychology to explain the mechanism by which a psychological injury develops. It focuses on the development of a person’s sense of self and their positive assumptions about people and the world.2 In the workplace, these assumptions or expectations include mutual respect, collaboration and support from others. When bullying violates such basic assumptions and expectations, it not only destroys trust in oneself and others but also damages belief in fairness, justice and the ability to control one’s life. In severe cases, bullying breaks apart the person’s sense of self and destroys their belief in the meaningfulness of life itself. Hopefully, knowing how bullying works will bring the working world a step closer to preventing this growing phenomenon that some have described as an epidemic. Each case of bullying is different, depending on the presence

of strengths, supports and influences in the workplace and the person’s life. At times, the complex interplay of organisational, socio-economic and psychological factors makes it difficult to identify and find a remedial strategy. On the other hand, if a single linchpin factor is addressed, it changes the landscape and leads to preventive action. Of all the factors that contribute to workplace bullying, the most confusing are the personal and psychological. The most commonly-asked questions are: [page 30] What exactly is psychological injury? Why do people bully? Whose fault is it, the bully or the target? Why do people stand back and do nothing? Why doesn’t somebody do something about it? It takes some time to understand what seems obvious, ‘why doesn’t somebody do something? Stop the bullying!’

Barriers to understanding psychological injury Managing complexity [3.2] Understanding the complexity of a bullying case and identifying its causes poses a challenge. Extensive international research into the destructive impact of bullying and its causes have revealed that bullying is a phenomenon with many contributing factors. Researchers are now developing integrated

models that describe an interaction of factors attempting to explain the phenomenon.3 Contributing organisational factors include excessive job demands with inadequate job resources, lack of role clarity and autonomy, and cultural and change processes that jeopardise psychological safety at work and create workplace stress. Socioeconomic factors include conditions such as globalisation, technological advances as well as differences in values and expectations of a diverse workgroup. Psychological factors contributing to bullying and psychological injuries include leadership failures, interpersonal conflicts, deviant behaviours and individual psycho-pathologies. This complex interplay of many factors makes it difficult for managers and HR to know where to start.

Culture and attitude [3.3] A common attitude towards people taking stress leave because of bullying is to consider them less hardy or weaker than the average person. Compared to visible traumatic stressors such as physical threat or injury, bullying at work may appear to be a minor stressor. In particular, some cultures accept mocking, bantering, criticism or open aggression and public humiliation as within normal limits. In the same way that boarding schools or the military have accepted bullying and initiation ceremonies as normal, some workplaces consider it to be an expected part of everyday interactions. This culture was evident in the Brodie Panlock case in which the owner of Café Vamp ignored and allowed repeated physical and psychological assaults by a manager on his young waitress. (See further at 3.15.) [page 31] One mechanism by which bullying and aggression spreads and changes a

culture is through social/emotional contagion that is defined as ‘the tendency to subconsciously, or consciously, mimic the verbal, psychological or behavioral aspects of another person in a group and thus to experience or express the same emotion or action’.4 Aggressive behaviour is one of the categories of contagion and may be simply the transmission of individual bullying behaviour to another or it may develop into mobbing behaviours.5 It is also argued that bullying is spread by observing others and internalising their actions as acceptable behavioural norms for behaviour, although this may not be conscious. Mimicking behaviour is particularly relevant when subordinates attempt to gain acceptance from their superiors.6

Entrapment [3.4] Leaving a toxic workplace and finding alternative employment presents a serious challenge to targets of bullying. Many organisations and recruiters are not willing to accept the perceived potential liability of a person who has already made a bullying claim in another workplace. The way recruiters and employers view bullying limits the options for employees who seek a healthier workplace. Those employees who are aware of a potential risk to future employment will not make a complaint but, when possible, will silently move on. The Cornerstone Research Report recently reported that ‘good employees quit at a 54% higher rate when they work with a toxic employee’.7

Unconscious bias [3.5] Another barrier to action against bullying is a bias against employees who make a complaint. Even when an organisation acknowledges that bullying is a threat to the psychosocial safety of the workplace and has put appropriate procedures in place, management and HR remain reluctant to take preventive action. One possible reason for such lack of action includes the reluctance to judge a potentially complex workplace interaction between

individuals. However, the person who makes a complaint can be seen as the one to blame, particularly if they are less likeable.8 In such cases, the unconscious bias of leaders who are expected to take action may lead to difficulty maintaining a balanced perspective. Understandably, bullying cases in themselves are stressful for management to handle given that they [page 32] take time, patience and may interfere with productivity. The Cornerstone Research Report attempts to balance this bias by considering the finding that ‘the cost to onboard a toxic employee is 3 ×[times] that of a non-toxic employee’.9

The healthy self at work: How it should be [3.6] Most people already have have an innate and embedded understanding based on life experience and good beginnings. However, it would be naïve to imagine that everyone shares this understanding and the values and attitudes that flow from it. Clearly, in the workplace there is a wide diversity of backgrounds and experiences. Beneath such diversity however, there is usually some shared understanding about what it is to be human and how relationships and society work. The healthy self at work shows the following qualities and capacities: has vitality, purpose and meaning; regulates and manages the intensity of emotions; expresses and communicates experiences, thoughts and feelings in words; articulates needs and requirements and is help-seeking when needed;

shares and grows in relationship with others; explores possibilities and sets goals; performs at capacity; shows mature moral reasoning and judgment; understands the experiences and feelings of others ; responds to others with appropriate support when necessary; and sets reasonable limits and boundaries on others. The underpinnings of psychological health include a sense of security, trust and overall optimism tempered with reality. When people have developed coping strategies for dealing with past difficulties, they can emerge as stronger for the experience of managing adversity. However, no-one is invincible, particularly if subjected to persistent and repetitive aggression from others over time.

Basic trust and fundamental assumptions [3.7] Trust in oneself and others provides the optimism that enables exploration and growth into mature, effective adulthood. The social psychologist, Ronnie Janoff-Bulman,10 describes three fundamental [page 33] assumptions which interact to form basic trust. These assumptions contribute to resilience and are maintained throughout life: The world is benevolent. The world has meaning.

The self is worthy. These assumptions underpin a conceptual system that reflects and guides interactions with others and enables effective functioning. People are seen as good, kind and caring; the world and life are assumed to make sense and, despite chance and random events, there are commonly-understood rules to live by with justice, fairness and controllable outcomes. Experiences in the earliest years demonstrate that the person is worth the investment that others have given – their time, loving care and resources. These assumptions provide not only basic trust but also lead to the growth of autonomy, initiative and industry. Initially, such assumptions may not seem realistic given the randomness of life’s events. However, research finds that most people do hold them as generalised, abstract conceptualisations about life.11

The development of a sense of self [3.8] The origin of one’s fundamental assumptions lies in the earliest experiences with parents and caregivers who provided the nurture and protection needed to survive and thrive from infancy to adulthood. In the context of benevolent relationships with responsive adults to depend upon, a person develops positive expectations of themselves and others. All was not necessarily perfect in any upbringing but normally it was enough, when combined with a person’s own innate talents and abilities. A prominent researcher and psychiatrist, Daniel Stern,12 found that infants develop expectations based on repeated and reliable responses from their parents. These expectations gradually become generalised into a subjective sense of being an entity, a self. As well as this growing sense of being a person, a core structure of self, which has four elements, develops. The core self persists throughout life and it may be strengthened or challenged through relationships and events over time. The four elements, as summarised, are:

agency — I am the locus of control, initiative and actions with consequences. emotionality — I have familiar patterns of emotions which I manage and regluate. coherence — I am an integrated, bounded whole self separate from others. continuity — I continue to be ‘me’ over time even as I change and grow. [page 34] This sense of knowing oneself grows within repeated, familiar patterns of interaction with others. Over time, these patterns become an attachment style that determines what to expect and how to manage feelings and behaviour in relationships. John Bowlby,13 the founder of attachment theory and the researchers who followed after him, established that these attachment styles are largely maintained into adulthood. A child, having acquired language, moves into the broader social contexts of school and eventually, as an adult, enters the workplace where there is new learning and adaptation. In this larger cultural context, the shared and basic assumptions, described by Janoff-Bulman, remain at base — that the world is benevolent, the world/life is meaningful and the self is worthy. Good parenting has instilled a sense of security and optimism. Parents have welcomed their children to the world, soothed and validated them to show them how to manage their emotions, develop relationships and grow into their talents and potential. From these experiences it is possible to build the sense of being worthy and lead a meaningful existence in relationships with trusted and benevolent others. The function of basic assumptions is to enable a person to carry on in the face of uncertainty with confidence and the optimistic expectation that disaster or adversity will not happen to them, although it may happen to

others.14 Normally, people cope with the randomness and uncertainty of life by seeking the support of others and having a sense of belonging as part of family, friends, workgroup and community. These needs remain essential to mental health throughout life.

The human conceptual system [3.9] Janoff-Bulman also points out that, within the assumption that the world is meaningful and makes sense, there is an expectation that if a person is good in character and behaves sensibly and wisely, life will be fair and just. Within this framework, bad things happen to bad people or to those whose own actions brought the consequences upon themselves. For example, if a person had an accident, were they driving too fast? If a person becomes ill, was it chance, bad luck or did they not look after themselves well enough?15 These are the very questions people ask when someone has been bullied. ‘What did they do to deserve bullying?’ Frequently the first questions the target asks are: ‘What did I do wrong? Is there something wrong with me?’ Life makes sense if there is action and consequence. Unfortunately, the frequent assumption is that there is something about the target that attracted the bullying, so blaming the target is a simple, superficial short-cut way of making sense of the bullying. This is particularly so when bullying is covert, subtle and the bully is powerful or makes a good case against their targets. [page 35] Janoff-Bulman16 acknowledges that, although basic assumptions are positively biased over-generalisations that may not always correspond to reality, they are not maladaptive. Fundamental assumptions are a bedrock

and are adaptive in that they are linked to positive emotions and optimism, which motivate a person to explore the world. Given that life usually presents challenges or adversity at some stage, it is necessary to test reality directly and develop a set of more precise assumptions, based on experiences that are termed schemas or operational maps. Schemas deal with more immediate areas of experience, such as a person’s unique abilities, the nature of specific tasks and interactions with others. Therefore, within the optimism and trust of basic fundamental assumptions, lie more specific schemas or concepts that help organise and interpret information about how things work in practice and how to exercise specific decision-making and judgments. Some of these schemas protect a person’s own safety by taking precautionary measures that contribute to a growing sense of competence and ability to control outcomes. This conceptual system allows for optimism and hope but is tempered with experience and good judgment. As Janoff-Bulman17 states: ‘A key to the good life might well be illusions at our deepest, most generalised level of assumptions and accuracy at the most specific, least abstract levels.’ If maladaptive schemas develop from specific experiences they may hinder development, reduce one’s resilience and limit potential. Maladaptive schemas may be relevant for targets in the workplace and contribute to becoming a target for bullying. Such schemas include: perfectionism, never feeling good enough; need for approval and recognition; fear of failure; or excessive accomodation of others. Examples of maladaptive schemas for those who bully in the workplace may include a core belief that:

the person is superior or entitled to special privileges or that normal rules, even laws, do not apply to them. the world is a hostile place. dominance and control will provide desired outcomes. aggression achieves results better than any other way of getting things done. Emotional damage, such as neglect, abuse or trauma from an early age, leads to fundamental assumptions that others are not to be trusted, that a person is not accountable for behaviour towards others and there is little [page 36]

Figure 3.1: The human conceptual system based on JanoffBulman

[page 37]

need for reciprocity. Within this framework, core beliefs include that it is not necessary to regulate or control one’s feelings, that manipulation and undermining are acceptable or that others deserve mistreatment. Although schemas and core beliefs change more readily than the fundamental assumptions, this is a slow, incremental process which does not usually alter the stability of the deeper assumptions. In adaptive, healthy development one steadily gets to know reality while maintaining a fundamental trust and optimism unless there is trauma.

The traumatic impact of bullying [3.10] It is important to understand that fundamental assumptions provide safety and comfort at the deepest level. These assumptions can be threatened by people or events which are not only out of the ordinary but also threaten survival. Whether physical or psychological, trauma destabilises the very conceptual system by which people live. Trauma has been largely thought of in physical terms such as lifethreatening accidents, military battle or sudden natural disasters. These are visible, tangible events which make Post Traumatic Stress Syndrome (PTSD) easy to understand as they are known threats to life and basic assumptions of safety. The more subtle attacks on a person’s inner assumptions and core beliefs, indeed on the very structure of the core self, come in the form of prolonged interpersonal aggression found in workplace bullying. Rather than the early onset of PTSD after a life-threatening event, the symptoms of more complex trauma develop slowly over time as the duress mounts, as in the case of repetitive bullying. These effects are known but less well understood. Bullying, already defined as an ongoing, relentless and escalating social process, weakens the target’s core sense of self at their deepest level. Observers, as well as the targets, are puzzled, especially when the bullying tactics are not readily visible or anticipated. The direct and indirect forms of

bullying may now be considered in terms of the depth of the attack on the target’s sense of self, their fundamental assumptions and their specific schemas or core beliefs. (See also at 1.2.) Bullying affects those whose fundamental assumptions have been adaptive and healthy, as much as those whose core beliefs are more vulnerable, sometimes even more so. Consider the following clusters of bullying behaviours based upon the impact on a person’s fundamental assumptions and core beliefs.

Shame and humiliation tactics [3.11] Shame and humiliation tactics undermine a target’s self-worth, sense of belonging and the fundamental assumption that people are supportive and caring. These tactics include: displaying offensive material; spreading misinformation or malicious rumours; abusive, insulting or offensive language; [page 38] making critical comments about a person’s appearance, lifestyle or their relationships; teasing or regularly playing pranks or practical jokes to demean and embarrass.

Tribal tactics [3.12] Tribal tactics attack the assumption that people are benevolent and accepting of each individual’s need to belong, collaborative and reciprocal, especially in the workplace. Tactics include:

contempt, disrespect, refusal to communicate; harmful or offensive initiation practices; deliberate exclusion, isolation or marginalisation of a person from normal work duties; and cliques, gossip and rumour.

Undermining tactics [3.13] Undermining tactics dismantle the fundamental assumption that life is meaningful with justice, fairness and controllability.18 It is accomplished by subtle or sadistic manipulations, designed to disempower the target and render them helpless. The following tactics are taken from the Workplace Bullying Draft Code of Practice:19 Using a person’s property or work equipment to interfere with their ability to work. Manipulating a person’s workload to affect their ability to deliver. Setting timelines that are difficult to achieve compared to expectations of others. Constantly changing deadlines which disrupt the person’s ability to perform. Setting tasks that are unreasonably below or beyond the person’s skill level. Withholding information that is important for effective work performance. Deliberately denying access to consultation, support or resources. Deliberately inconveniencing a worker by changing arrangements, such as rosters and leave. Unfair treatment in relation to accessing entitlements such as leave or training.

[page 39] When a target realises that the bullying tactics are deliberate with intent to harm, their initial response is shock and they seek support and firm action against the perpetrator who violates all social values and expected moral codes. When there is no support or action from others, especially from authorities, the very foundations of the target’s sense of self-worth and belonging begin to fall apart. When this happens it is possible to observe the more sadistic perpetrators taking some delight in the disintegration of their target’s well-being, engagement and performance.

Bullying tactics and depth of psychological injury [3.14] The above clusters can also be grouped according to the directness of the bullying, as seen in Chapter 1 at 1.2 and following, or according to the severity of the bullying behaviours. This section considers the differential impacts and psychological injuries of direct compared to indirect bullying.

The impact of direct, overt bullying tactics [3.15] Direct, overt bullying behaviours and tactics, that at times are purposeful and other times impulsive and irrational, are observable by others. An example is an outburst of unprovoked rage with insulting, demeaning language against an employee. It attracts attention and censure from others and is more easily addressed by HR or even the law. The target is also able to make sense of the behaviour as being unacceptable and may see it as a specific instance, not indicative of people’s behaviour in the world at large, even though the experience is damaging. In general, it seems that these overt, readily-observable forms of abuse

affect the target’s specific schemas and well-being, but will not necessarily dismantle their bedrock assumptions. There are exceptions when shaming has been overt and so severe that the target withdraws, is unable to seek support and remains isolated and at risk. The Brodie Panlock case mentioned in Chapter 1, illustrates this. Brodie was a 19-year-old woman working in a Melbourne café where she was humiliated and abused, both physically and emotionally. In the coroner’s investigation it was stated: This behaviour took various forms. It included putting fish oil in her bag, covering her with chocolate sauce, telling her that she was worthless and didn’t deserve to be here — those sorts of things and they would just grab her and hold her down and put oil over her so she couldn’t get away (this occurring) on three or four occasions.20

When Brodie attempted suicide she was told by her manager ‘if you’re going to do it, do it properly’. Brodie became so depressed and publicly ashamed that she began to self-harm. She ultimately committed suicide in 2006.21 [page 40] Open abuse and public shaming, observable by others, are now exposed more frequently by the media. The exposure potentially moves the risk from the target to the perpetrator, who can now be exposed to the risk of losing their own reputation, position and financial security. Shaming often occurs in organisational environments where toughness is valued or where belonging has to be earned through initiation rituals and accepting abuse for a period of time to ‘earn one’s stripes’. It has been well-known in the military and schools but is also seen in the construction industries, the arts, media as well as in health, education and non-profit sectors of government. Direct bullying violates expectations of respect, reciprocity and collaboration.

Indirect, covert and serial bullying

[3.16] More indirect, covert and multi-pronged tactics that escalate over time have a different impact on the target. Covert undermining is more difficult to observe, describe and prove to others. The bully uses covert tactics such as manipulating influence networks with gossip or lying, setting the target up to fail. Failure is achieved by thwarting performance (eg, hiding vital information, excluding the target from meetings) which leaves the target struggling to make sense of what is happening. The bully gradually manoeuvres the target into a position of helpless disempowerment and an inability to perform (Einarsen),22 (Egan).23 This form of bullying is usually serial and often predatory and sadistic. There are phases in this type of bullying with its intent to harm. Initially, the target is engaged or singled out for special attention. If the bully has formal power, the target is then steadily isolated from colleagues by manipulating time, space and workload. Informal power may also achieve isolation by gossip, lies and exclusion. In the second phase, when the perpetrator is an individual, the target is destabilised by the perpetrator’s conflicting messages and mood changes. At times there is a mind-scrambling mixture of charm and concern, followed by undermining and abuse, then behaving as if nothing has happened and reverting to charm and concern. The destabilisation may also be achieved through chaotic, unrealistic demands and unpredictable changes in direction. The target struggles to keep up, becomes stressed over time and performance either slips or is criticised. In the final phase the target is too stressed to perform and leaves the workplace or is forced out. The impact is even more severe when authorities, meant to protect employees, actually take part in the bullying such as when there are betrayals by workplace safety regulators. This pattern of bullying abuse is summarised in Figure 3.2.24 [page 41]

Figure 3.2: Serial bullying tactics

[page 42] Prolonged and repeated bullying leads to the stressed under-performance

of the target and the objective of the bullying is achieved when the target leaves the scene. Such planned bullying is an assault on all four elements of the core self described by Stern, at 3.8. Examples of the damage to a person’s sense of self are described as follows: The sence of agency and autonomy is compromised when bullying tactics thwart initiative and undermine performance. The self-regulation of emotions becomes disorganised as anxiety, shame and depression take over, monopolising thoughts and feelings. Continuity and self-history are compromised when stress disrupts memory and thinking stress. The person feels they are no longer the same person they were before the bullying. The sense of being a coherent whole is fragmented under prolonged duress and stress of being bullied. The person becomes disorganised and unable to perform. As one person said ‘I now seem to have two minds’ and another said ‘This isn’t me. This is a person I don’t know. I’ve never been like this in my life. What’s happened to me?’ When the target finally realises that the covert combination of bullying tactics has been deliberate, shock and disillusionment follow. It is particularly disillusioning that colleagues, in an ordinary workplace, could execute such war-like guerilla tactics. All fundamental assumptions of goodness, belonging, worthiness and meaning are now in jeopardy and this can lead to symptoms of Complex Trauma. Courtois25 describes Complex Trauma as resulting from interpersonal traumatisation which is premeditated and planned. In general, interpersonal traumatisation causes more severe reaction in the victim than does traumatisation that is impersonal, the result of a random event or an ‘act of God’, such as a disaster (ie, a natural disaster such as a hurricane or tsunami, a technological disaster) or an accident (ie, a motor vehicle or other transportation accident, a building collapse) due to its deliberate versus accidental causation.26

Symptoms of Complex Trauma include unregulated emotions, cognitive impairments (memory, planning, organisation), somatic symptoms, disturbances in self-perception and loss of trust in others. When psychological damage is very severe, all trust in fairness and justice is lost. Such symptoms are found in those who have suffered targeted interpersonal aggression, even violence over a period. To date, studies in Complex Trauma have focused on childhood trauma and the impact on early development. However, Courtois and Ford27 state that cumulative adversities can lead to complex trauma in adults and this includes ‘civilian workers harassed and assaulted on the job’. [page 43] In the author’s clinical experience, the more covert forms of bullying usually take the target approximately 12 to 18 months to work out what is wrong. They have already ruminated for long periods, about whether they have caused the problem themselves. Often, numerous efforts to do the right thing, perform as expected or correct anything they imagine they may have done has already been made. It is only gradually that they come to perceive that the bullying is deliberately destructive. This realisation is delayed if the early relationship with the perpetrator had been pleasant or even appeared to be special, as with the person who cried ‘She came to my wedding and my home!’ Moreover, she then said, ‘I thought she was a friend’. In these cases, the interpersonal betrayal is particularly wounding and destabilising as it jeopardises confidence in a person’s perceptions and judgment. The psychological injury caused by such interpersonal destructiveness is further aggravated by systems that fail to prevent or correct wrong-doing.28 If employers and insurance companies deny the injury exists, it leaves the target further traumatised and at times, losing faith in life and its meaning. Psychologically, victims are between a rock and a hard place. They are in a state of conceptual

disintegration because the nature of the world and the self, implied by the traumatic victimisation — a helpless, weak self in a malevolent, meaningless world — contradicts the old, positively biased assumptions.29

The case examples of Nina and Renee provided below demonstrate the differential impacts of direct and indirect bullying. Both cases involve highly intelligent, professional women who suffered repeated negative and destructive behaviours against them over a period of time. Following those is the case of Justin, which raises the question of the definition of bullying when compared with other forms of abuse which also cause stress and psychological injury. Case example: Nina, the medical intern The new Head of Department in a public hospital setting where Nina was a medical intern began to single her out for abuse. He did this even when she was not responsible for the duties or the mistakes he claimed she had made. He made abusive phone calls to her when she was off-duty and yelled at her in front of other doctors and senior professionals in the workplace. He denied her right to a debriefing after a traumatic incident in which a child died. He then set her an unreasonable work schedule and would not accept any absence from work due to personal reasons. He accused her of lying if she tried to take leave. The Head of Department finally set her an unnecessary, risky and almost impossible physical task with an agitated patient in front of senior [page 44] doctors and peers. In the context of the previous abuse, she thought he did this with the intent to cause failure and public humiliation. She succeeded in the task under intense duress but colleagues later commented that her hands were shaking uncontrollably during the procedure. She continued to shake in his presence after that incident. The Head of Department then made active and explicit attempts to influence her examiners to fail her thereby potentially destroying her career and reputation. Senior management clearly knew of the situation and were sympathetic. They refused to fail her but as far as is known, they provided no protection. He continues in his position and bullies other interns.

Explicit and direct bullying

Overt bullying behaviours [3.17]

Bullying behaviours in this scenario:

overt abuse mostly with an audience but also with out-of-hours phone calls; demanding an unreasonable work schedule; setting the target up for public humiliation and failure; explicit threats and attempts to damage her career; and flouting physical safety procedures and ignoring psychosocial safety.

Impact on the intern [3.18] In this case of direct and overt bullying, the intern was severely stressed and found it difficult to make sense of why she was being singled out for abuse. An unnecessary, risky and difficult procedure was demanded of her by the Head of Department in front of a large number of fellow professionals. Her stress levels were extremely high leading to physical and emotional stress. She did not make a formal complaint out of fear that it would attract a further retaliatory response and thereby impact on her career.

Protective factors Colleagues observed the bullying and were supportive of Nina. The perpetrator became known as a bully and later abused others which was observable and verifiable. She could leave within a short time-frame and was not trapped. She knew she could still make a formal complaint.

Aggravating factors Limited support and no action from upper management. A culture in which abuse was accepted.

[page 45]

Employer’s duty of care [3.19] Despite the fact that the Head of Department developed a pattern of bullying interns, management seemed to avoid intervening. To date nothing has changed and there have been no known consequences to the bully. He remains in his position and continues to abuse interns. There has been no known behavioural accountability and safety issues appear to have been ignored.

Outcome [3.20] The bullying, in this case, was overt and blatant. Colleagues witnessed the behaviour and privately supported Nina, who came to see the bully as an impaired personality with aberrant behaviours. Nina encapsulated the experience as specific and she was able to separate it from other positive experiences in her profession. She also made sense of the bullying in terms of her previous positive experiences that stood in contrast to the bullying behaviours in this specific case. She was able to maintain her optimism and she remained resilient. Her self-worth was challenged but she did not develop symptoms of trauma. Nina’s fundamental assumptions of self-worth, the basic goodness of others and meaningfulness of the world and life were not destroyed. However, she did modify her specific expectations of colleagues to include a more developed understanding of abuse and strategies to respond to it in future. Nevertheless, Nina’s stress levels were extremely high in the bully’s presence. The fact that she knew she could exit the unsafe environment within a short period was crucial and averted any sense of entrapment in the abuse. Her sense of self remained stable and coherent, and she has successfully progressed in her career. She continues to feel vulnerable and is distressed if others do not believe her or suggest she may have caused the

abuse by being too confident and assertive. Her distress, when hearing a sceptical comment by an uninformed colleague who assumed she must have brought the abuse upon herself, helped her to recognise that there is further healing to be done.

A case of predominantly indirect covert bullying Indirect covert bullying [3.21] Indirect bullying can destabilise a person’s fundamental assumptions that the world is benevolent, meaningful and that they are worthy of normal care and respect. Case example: Renee, the high achiever Renee had worked for 15 years in an educational setting, where the culture was positive and the work was of a high standard. She enjoyed the relationships with her colleagues and the leadership was clear, forthright and supportive of the staff. During that time she managed work and relationships while raising [page 46] a family and completing her PhD. Once she had successfully completed her higher degree colleagues, friends and family encouraged her to seek a more senior position where she could use her academic and research skills. Within the first week of taking up a senior role in a new location, there was a noticeable absence of normal introductions to the staff and amenities on the part of management. Communications were sparse and her requests for information and assistance were ignored. In the first weeks she was allocated a complex research project with an impossible deadline in an unfamiliar work environment, without direction or support. She later found that other staff had been given six months to complete similar projects whereas she was given six weeks. Senior levels and her manager did not respond or support Renee when she reported open abuse by a junior staff member, who then spread malicious lies and gossip about her with other staff members. She was later abused and threatened physically by a client who carried a long-term grudge against the organisation. Management neither responded nor intervened at any time, to the cumulative stressors and did not respond to her requests for help and support, especially when there were physical threats. The existing staff of peers

and subordinates clearly did not accept Renee or respect the authority of her senior role. The exclusion, isolation and tension persisted for over a period of a year. Renee eventually became anxious, depressed and took stress leave. She was then contacted by a staff member who had observed the group’s behaviour and who told her that, even before she arrived in her new role, existing staff assumed that she would be elitist towards them because she had a PhD. They had hidden materials from her to make it more difficult for her to do her job and, even at senior levels, had withheld support to force her to fail. When Renee returned to work from stress leave, staff members were furious that they had to cover for some of her role while she was on stress leave and abused her in a group meeting. Renee’s complaints were escalated to departmental levels where nothing was done to change the working environment or the culture.

[3.22]

The bullying behaviours in Renee’s scenario include:

unreasonably overloading with work; setting timelines that are difficult to achieve and unreasonable when compared with similar demands made on others; withholding information that was essential for her work; staff deliberately denying access to information; exclusion and isolation; verbal aggression, threats, spreading malicious gossip; and management denial of consultation and support even when physically threatened. [page 47]

Impact of indirect bullying [3.23]

Renee developed symptoms of complex traumatic stress as follows:

significant depression and anxiety with suicidal thoughts;

excessive sleeping and avoidance, social withdrawal; dysregulation of emotions, impulsivity, hypervigilance; loss of trust in colleagues, the system, justice, fairness; loss of her sense of self and a dysjunction between herself as she had known herself in the past and her current condition; attention, concentration, memory impaired by stress; and impulsivity increased as part of a stress response. Renee’s condition was aggravated when the case was escalated and nothing was done to protect her or to change the cultural dynamics in the workplace. The lack of support destroyed her faith in the values and fairness of the organisation and led her to feel worthless.

Protective factors [3.24]

The protective factors include:

strong support from family, long-term friends and external colleagues; and supportive doctor and some professionals.

Aggravating factors [3.25]

The aggravataing factors include:

job insecurity, trapped in an unsafe work environment; lack of support by work, health and safety departmental authorities who did not intervene to change the environment or prevent the bullying behaviours; denial of employer responsibility for events leading to Renee’s psychological injury; active attempts to stigmatise Renee as mentally ill; and

leadership failure to act responsibly and effectively.

Outcome [3.26] Indirect, tribal-based bullying (‘you are not one of us’) with predominantly covert attacks by the group severely destabilised Renee’s fundamental assumptions that the world is benevolent, meaningful and that she was worthy of normal care and respect. Her inability to make sense of the attacks left her disempowered, without the ability to control outcomes. In the absence of justice and fairness, she gave up any sense of control and became angry and impulsive, which led to further shame and [page 48] self-doubt as she was violating her own values. Renee became afraid that she was permanently damaged. Although the more overt abuse, threats and neglect of safety added to the accumulation of covert stressors, if experienced alone they probably would not have destabilised her basic trust in life. It would have been possible for her to encapsulate her experience of bullying as specific to that toxic situation. It would not necessarily destroy her trust in the world as fair and just. One factor that shocked Renee and eventually led to severe psychological damage, was finding out that the bullying was planned. It emerged that, from the beginning, the group had someone else whom they wanted in the role she was given. It destroyed her assumption that people are benevolent and led her to question her own self-worth. Furthermore, the lack of support and failure to restore order by upper management damaged her assumption that fairness, justice and some degree of control over one’s life were attainable. Courtois and Ford state that in institutions: As a self-protective strategy, the group may coalesce around silencing, secrecy and denial. As a

result, the victims do not receive the help they expect and need when the victimisation is exposed or otherwise exposed … A lack of response or protection — or victim blaming — is a betrayal of the victim’s trust and the helper’s responsibility that can severely exacerbate traumatic victimisation.30

Shallcross et al also found that ‘participants report a number of experiences, such as lengthy investigations and escalation of conflict, which result in an increasingly unbalanced sense of power away from the individual and towards the organisation’.31 Renee developed severe symptoms of Complex Trauma with anxiety, depression, loss of meaning and control and she became suicidal. Ultimately, she continued to seek help to make sense of what had happened to her. She worked hard to revise her previous expectations of acceptance, collaboration and support in this specific context and to maintain her positive relationships outside the workplace. She tried to accept that her position and role may not be automatically respected and that others’ competitiveness can lead to destructive, unprofessional behaviours. It is an ongoing and long-term process to manage her fears and to develop more resilience in the face of the ongoing attempts of the institution to dismiss her as mentally ill. The ongoing difficulty in bullying cases such as these is that the diagnosis becomes stigmatising which is described by Shallcross32 as a final stage in which the organisation works to expel the [page 49] employee as mentally ill. Courtois33 also attempts to remove the stigma of trauma symptoms in her latest book. After some time, Renee stabilised sufficiently to respond assertively and respectfully to the organisation’s failure to plan effectively for psychosocial safety. She knew her rights, held her point of view and successfully negotiated a difficult Return to Work program. She remained vulnerable to setbacks or

challenges, however, and was vigilant and wary in the workplace due to her loss of trust. As is often the case, she became vulnerable to further bullying and betrayals and when it reoccurred her symptoms returned.

A borderline bullying scenario [3.27] The case of Justin is included here to raise a definitional question. When do other factors cause it? Case example: Justin, the over performer Justin was a conscientious, skilled officer in an international company. His performance record was considered outstanding by those who depended on him for services. He was the only person in the organisation who could perform a crucial role which ultimately made him a key man risk. When his pregnant wife was critically ill in hospital, Justin was exposed to an epidemic which was a major health risk in the workplace. His repeated requests for management to take steps to prevent such a risk were ignored. He lived in terror that he would cause the death of his wife if he unwittingly caught the disease and transmitted it to her and their unborn baby. Already traumatised, he was then overloaded with work and denied normal leave while others, more favoured by management, were permitted leave. He was also denied promotion despite a performance which was recognised as exceptional. Colleagues told him that promotion was reserved either for women or one favoured nationality. He concluded that he would never be promoted. Justin was stoic, overly conscientious, did not set boundaries, complain or report to HR. He sought private counselling to overcome trauma and regain emotional stability and this made him more confident and assertive. With his new-found assertion, he insisted on appropriate boundaries, demanded his entitlements which had been denied him and resisted unfair and discriminatory practices. He reported the breaches to HR who acted firmly on his behalf. As Justin planned to leave, he set about training others to do his work both nationally and internationally. His new immediate manager was honest and positive and he tried to buffer Justin from upper management, which remained discriminatory and undermining. His clients, for whom he provided a service within the organisation, wrote him a number of outstanding references. As Justin left, colleagues also revealed how disaffected they were with the organisation and were looking for alternative employment.

[page 50]

Bullying behaviours in Justin’s scenario [3.28]

The bullying behaviours in Justin’s scenario include:

setting unreasonable work load; unfair treatment in accessing workplace entitlements; changed work arrangements to reduce his remuneration; and changed workstations and isolating him from his team.

Leadership failure [3.29]

In Justin’s view the leadership and management in his department:

failed to provide workplace safety during an epidemic; ignored key man risk which increased his workload; and discriminated concerning promotions.

Psychological impact [3.30] Justin suffered uncontrollable distress whenever he remembered that his wife could have died if he had transmitted a work-related disease to her during her pregnancy. As his distress settled, he began to observe that, as well as a safety risk, there was an unfair and discriminatory pattern of entitlements and promotions.

Protective factors [3.31] There were no protective factors as family and friends were unavailable and his work schedule prevented normal socialising. He relied on his counsellor to gain strength to manage it alone. During this time he was able to maintain his values and his ability to function at work despite the stress. His innate resilience and good judgment preserved his fundamental assumptions and his ability to relate to a few colleagues enabled him to maintain some valued supports.

Aggravating factors [3.32] Justin’s excessive conscientiousness and loyalty may have contributed to the development of his key man position and workplace stress. These qualities seemed to originate in his positive early development and strong value system rather than simply a need for approval. It may have also contributed to a discriminatory management that seemed to assume that he did not have to be considered.

Strengths [3.33] Justin sought counselling when he recognised that he was not recovering from trauma. He continued to cry and feel helpless every time the traumatic event came to mind. He worked hard in counselling [page 51] to overcome the trauma and to develop the strength to assert himself whenever management threatened his normal employee rights with unfair or discriminatory practices. When this failed, he reported to HR who acted firmly on his behalf.

Outcome [3.34] Justin negotiated a favourable redundancy and prepared to find another job. At his insistence, he trained others to take over his role so that the business would not suffer, even though this had not been foreshadowed by management. He resolved the original trauma and used the experience to put reasonable boundaries around his overly-conscientious approach to work and to place more emphasis on his well-being. This workplace showed a lack of normal empathy and flouted its duty of

care for employees. The lack of recognition of key man risk suggests managerial incompetence. However, the case for bullying is uncertain.

Summary [3.35] This chapter has sought to establish that the human core conceptual system, with fundamental assumptions about the world and self, is related to positive experiences in the earliest years. Specific schemas, developed through testing reality, are subsumed under the fundamental assumptions within the larger conceptual system. Fundamental assumptions and schemas are integral to the sense of self and expectations of others and the world. Bullying damages these healthy adaptations to life by prolonged interpersonal aggression. Based on qualitative case examples, it appears that the depth of impact and disablement may depend on the type of bullying. Direct, overt and observable bullying threatens narrow assumptions tied to specific situations. In this case, the targeted person has more opportunity to make sense of specific contexts and events and their fundamental assumptions are not usually threatened. However, there are severe cases when the self is threatened at every level as seen in the Brodie Panlock case and her eventual suicide. When there is a loss of trust and meaning, suicide is a greater risk. If there has been previous unresolved and untreated bullying trauma, the target may be vulnerable to any form of bullying in the future. When bullying is less observable, covert and manipulative it leads to the target’s bewilderment, disempowerment and helplessness. The realisation that this type of bullying is deliberate creates moral shock and threatens the target’s fundamental assumptions about the goodness of others, self-worth and meaningfulness of the world and life itself. The belief that justice, fairness and the controllability of outcomes are values shared by peers, colleagues, managers and the organisation itself is inherent in these assumptions.

[page 52] In severe cases, when there is a loss of self-worth, people feel trapped by their fear that no other workplace would want them, which in turn compromises their job and financial security. When belief in the humanity of others and the justice and fairness of organisational procedures is lost, basic trust and the sense of safety are damaged. When trust in oneself and others and when the world no longer makes sense in terms of fairness and justice, life loses meaning. Bullying can therefore be life-threatening and lead to suicide. In the above examples, the targets were strong personalities who survived, although Renee was at serious risk of taking her own life. None had preexisting conditions or traumas known at the time which would have added to the impact of the destructive bullying behaviours. When a person recovers from one bullying situation and then encounters more bullying, they may find it harder to withstand new instances of bullying than if the earlier bullying had not occurred. Given that recruiters and employers often assume this to be the case and are reluctant to employ a person with a history of having been bullied, there are limited opportunities for future employment. When targets are vulnerable, isolated and have cumulative life stressors, workplace bullying and its consequences of health impairment and limited opportunity, can cause them to lose the will to live. The third case of Justin is presented to raise the question of definition as it illustrates cumulative stressors, including neglect of both physical and psychosocial safety, discriminatory and bullying behaviours. It is uncertain whether this would be seen as a clear case of bullying and suggests the importance of a combined psychosocial and legal perspective to determine which safety and legal procedures would be applicable. The next chapter examines the questions of personality and ‘Why do they do it?’

_______________ 1

M B Neilsen and S Einarsen, ‘Outcomes of Exposure to Workplace Bullying: A Meta-Analytic Review’ (2012) 26(4) Work and Stress 309.

2

R Janoff-Bulman, Shattered Assumptions: Towards a New Psychology Free of Trauma, The Free Press, A Division of Simon & Schuster, 1992, p 6.

3

C Balducci, F Fraccaroli and W B Schaufeli, ‘The Job Demands-Resources Model and Counterproductive Work Behaviour: The Role of Job-Related Affect’ (2011) 20(4) European Journal of Work and Organisational Psychology 467.

4

M Harvey, D Treadway and J Heames, ‘The Occurrence of Bullying in Global Organisations: A model and Issues Associated with Social/Emotional Contagion’ (2007) 37(11) Journal of Applied Social Psychology 2576.

5

S Einarsen, ‘Harassment and Bullying at Work: A Review of the Scandinavian Approach’ (2000) 5 Aggression and Violent Behaviour 379.

6

L K Zellars, B J Tepper and M K Duffy, ‘Abusive Supervision and Subordinates’ Organisational Citizenship Behaviour’ (2002) 87(6) Journal of Applied Psychology 1068.

7

R Fevre, D Lewis, A Robinson and T Jones, Insight into Ill-treatment in the Workplace: patterns, causes and Solutions, 2011 at .

8

C Frantz and R Janoff-Bulman, ‘Considering Both Sides: The Limits of Perspective Taking’ (2000) 22(1) Basic and Applied Psychology 31.

9

Toxic Employees in the Workplace — Hidden Costs and How to Spot Them, Research Report by Cornerstone OnDemand Inc.

10

Janoff-Bulman, Shattered Assumptions, above fn 2, p 6.

11

R Janoff-Bulman, ‘Assumptive Worlds and Stress of Traumatic Events: Applications of the Schema Construct’ (1989) 7 Social Cognition 113.

12

D Stern, The Interpersonal World of the Infant: A View from Psychoanalysis and Developmental Psychology, Karnac Books, 2006, p 71.

13

J Bowlby, Attachment and Loss Vol 1: Attachment, Basic Books, 1969.

14

Janoff-Bulman, Shattered Assumptions, above fn 2, p 9.

15

Janoff-Bulman, Shattered Assumptions, above fn 2, p 9.

16

Janoff-Bulman, Shattered Assumptions, above fn 2, p 19.

17

Janoff-Bulman, Shattered Assumptions, above fn 2, p 24.

18

Janoff-Bulman, Shattered Assumptions, above fn 2, p 9.

19

SafeWork Australia, Preventing and Responding to Workplace Bullying – Draft Code of Practice, May 2013, .

20

Coroner’s Report No 362506, 12 May 2011, p 2 at .

21

S Butcher, ‘Brodie’s Torment’, The Sydney Morning Herald Newspaper, 11 December 2009 at

. 22

S Einarsen and M Birkeland Nielsen, ‘Outcomes of Exposure to Workplace Bullying: A Metaanalytic Review’ (2012) 26(4) Work and Stress 17.

23

K Egan, ‘Trauma and the Corporate Psychopath’ LexisNexis Butterworths’ Conference on Psychological and Psychiatric Aspects of Trauma (2003).

24

Egan, above fn 23.

25

C Courtois, ‘Complex Trauma, Complex Reactions, Assessment and Treatment’ (2004) 41 Psychotherapy: Theory, Research, Practice and Theory 412.

26

Courtois, above fn 25.

27

C Courtois and J Ford, Treating Complex Trauma Stress Disorders, The Guildford Press, 2014, p 18.

28

L Shallcross, S Ramsay and M Barker, ‘Severe Workplace Conflict: The Experience of Mobbing’ (2013) 6(3) Negotiation and Conflict Management Research 191.

29

Janoff-Bulman, Shattered Assumptions, above fn 2, p 93.

30

Courtois and Ford, above fn 28, p 131.

31

Shallcross, Ramsay and Barker, above fn 32.

32

Shallcross, Ramsay and Barker, above fn 32

33

C Courtois, It’s Not You, It’s What Happened to You, Elements Behavioural Health, 2014.

[page 53]

Chapter 4 Personality, Motivations and Strategies Introduction [4.1] Individual differences related to aggression and antisocial behaviour are a significant factor in bullying. Aggression is known to be a highly stable behaviour related to the likelihood of engaging in bullying behaviours.1 Examples of individual characteristics related to stable patterns of aggressive behaviours are personalities who: perpetually attribute hostile intentions to others and respond in kind; are driven to get things done, intolerant and aggressive when there are mistakes and believe in swift punishment for any transgressions; and have not developed an ability to regulate and monitor their behaviour. In these cases, people see nothing wrong with their aggressive behaviours until there are negative consequences to themselves and they often have a history of aggression.2 Aggression by one dominant person in a workgroup may influence other individuals to act aggressively and a maladaptive workgroup norm develops. When these norms are established those who do not share the norm, or do not fit within the group, are confronted and excluded.3 This was seen in the case of Renee in the previous chapter, at 3.21 and following. In Renee’s case, the norm was to preserve the mediocre standard which limited job demands and to come from a local area. Renee was employed with a specific agenda to lift standards, which the group

resisted with a variety of tactics, both aggressive and passive. In this context, interpersonal conflict, a major factor in workplace bullying, will rapidly escalate if no preventive action is taken or if a proactive target responds in kind. When a target is less proactive and more self-monitoring they are more likely to be destabilised, stressed and become symptomatic. If this irritates people, it may attract repeated bullying by more aggressive employees who [page 54] want the person to step up instead of withdrawing or cringing in fear. This chapter describes individual differences and personalities that are more likely to use bullying behaviour. Each personality is described and their motivations and bullying strategies are outlined.

Motivations and objectives of bullying The intent to harm [4.2] Aggressive behavioural patterns, whether overt or covert, are known to create severe psychological injury to individuals and destroy team effectiveness in organisations. Within these behavioural patterns there may be varying degrees of self-awareness and intent to do harm. For example, the motivation may be to lift standards or improve results, but the behaviours used to achieve this are aggressive and destructive.4 Understanding the motivation is useful when deciding on the intervention. In general, the intent to bully others is not measurable unless it is admitted by the perpetrator and this is unlikely. Intent to harm, therefore, must be inferred from the repetitive nature of the behavioural patterns, the

perpetrators’ resistance to feedback about the damage they are inflicting on others and the failure to learn or change their behaviour when held accountable. For example, if the intent is to lift standards, the person can be coached to learn alternative strategies for getting things done. If they reject the feedback, blame others and fail to change their behaviour, it brings into question both their motivation and ability to change. In the Fair Work Commission bullying is considered to have a deleterious impact on the targets whether or not there is intent to harm. Although this is undeniably necessary in law, it is essential, in the workplace, to recognise and evaluate the degree of intent to do harm given that this will determine the most effective path to remedial action. When there is intent to harm, remedial action will differ from those situations where there is no active intent. Recognition of the motivations which underpin bullying behaviours enables more effective decision-making when attempting to restore the psychosocial safety of the environment. At this point, extensive bodies of knowledge in psychology, psychiatry, sociology, organisational behaviour, business ethics and law may be employed to assess behavioural risk and inform remedial action and prevention (see Chapter 8 for remedial action).

Behavioural choice and interpersonal responsibility [4.3] It is clear that most people do not engage in negative acts towards others in the workplace, even when there is excessive workplace pressure amounting to stress. The Australian Workplace Barometer5 sampled a large number of employees and found that 7%, or 700,000 people, had [page 55] been bullied in the previous six months while 93% had not been bullied.

While this level of bullying is alarmingly high by international standards, it is also clear that most people must be making ethical choices to work constructively to overcome stress and find solutions. Nevertheless, if 693,000 people are being bullied each year6 the impact of bullying, by the few, has an extraordinarily powerful effect on the health and safety of the workforce. The Australian Workplace Barometer reports ‘Bullying and harassment comprise on average 22% of all accepted mental stress claims in Australia (2008–2009 to 2010–2011 combined).7 Despite the far-reaching consequences of bullying by a substantial few, it is not a normal part of working life in general. In the author’s opinion, bullying is a behavioural choice for individuals, unless there is psychological disorder or the behaviour is tolerated, modelled and fostered, usually in the belief that it is a legitimate means of achieving objectives. Although research on bullying informs the law8 in a number of countries including Australia, there is a clear reluctance in many organisations to consider bullying behaviour to be dysfunctional or define it as pathological and unsafe. This attitude reflects a legitimate, humane concern given that inappropriate psychological labelling can itself be a negative act which damages the alleged bully’s well-being and reputation. Labels, which include the words ‘narcissist’ and ‘psychopath’, are certainly prone to misuse if they are used loosely in an uninformed, popularised and indiscriminate way.9 Nevertheless, denial of the existence of psychopathology in the workplace is neither possible nor helpful. Public awareness has grown over the last decade and in this early phase, it is probably inevitable that concepts of bullying and psychopathology will be misunderstood or misused in the workplace. It is therefore more helpful to provide a steady, pre-emptive educational approach which recognises mental disorders and promotes behavioural responsibility at all levels in the workplace. Many organisations have already begun this process with structures for behavioural accountability in place while others are unaware or resistant to do so.

In the spirit of such educational objectives, this chapter uses psychological terms to enable a deeper understanding of problematic personalities at work and the motivations which govern destructive and counter-productive work behaviours. Most of the research findings referred to are drawn from [page 56] social, personality and organisational psychology as this is where research is most relevant to the workplace although the original work came from the clinical fields. The authors recommend that the psychological terms outlined here and based on research should be used with care, maintaining respect for all parties and not using terms to denigrate others and undermine professionalism.

Is there deliberate intent to harm? [4.4] There is no doubt that some people may resort to bullying behaviours such as yelling, swearing and public humiliation or other forms of incivility in response to workplace pressure, but this is not part of an overall pattern of behaviour. Similarly, a person may make unreasonable work demands at times of pressure but this does not happen on a consistent basis nor is it considered normal work practice. Moreover, the person does their own fair share of the work, does not manipulate others to do it for them nor do they take credit for others’ work. If they are a manager or supervisor, they acknowledge the efforts of the team, allocate work fairly and ethically and there is a sense of organisational justice which people trust. The occasional aberrant behaviour, even if not repetitive or serial, may cause psychological damage to others. When there is no repetitive pattern of deliberate abuse or undermining another person’s performance and professional development, it may be termed ‘accidental bullying’. In these cases, the psychosocial safety

climate is generally good enough although individuals may occasionally succumb to stress and behave badly at times. In the case of such accidental bullying the person demonstrates enough cognitive, emotional and moral maturity to take responsibility for their behaviour. If they have behaved aggressively they have had sufficient selfawareness and insight to realise they were in the wrong, show genuine concern about the impact on another person and repair the relationship. Employees, whatever their ranking, have these options and are able to strike a balance in both their own behavioural choices and their expectations of others. Of course, there is a limit to their credibility if this is repeated. In contrast, there are serial, predatory bullies who regularly seek out targets as seen in the case of Nina, the intern, who was targeted by a head of department known for bullying one intern after another over a period of time (at 3.16). Again, in the case of Renee (at 3.21), a hostile group systematically targeted her for exclusion, denial of support and abuse. This type of bullying was not based on a predatory motivation, but because she did not fit in with the workgroup’s norms, which were that she was not local, had higher qualifications and had been recruited to lift the standard of the group’s performance. The bullying weakened her emotional resources which contributed to her being bullied again in the next workplace. In both these cases, the organisation did not remedy the problem or take firm action to address the bullying behaviour. The organisations could have acted appropriately by informing the perpetrators about the deleterious impact on their targets and warned them about their behavioural [page 57] responsibility. If the behaviours continued, it would be reasonable to think there was either a bullying intent to harm or an emotional incapacity to change. The inability to change, when held accountable, indicates that

perpetrators are likely to be suffering from a psychological disorder, which prevents them from managing their own behaviour, making reasonable, ethical decisions and monitoring their own behaviours. Such behaviours render them dangerous to the health of others and to the safety climate in the organisation. This chapter explores the motivations of different personalities and explores how these are also manifested in group conflict and mobbing.

Personalities and bullying in the workplace [4.5] The extensive research related to bullying in the workplace spans many fields including psychology, human resource management, workplace stress, business ethics and law as well as research journals specifically dedicated to aggression and abuse. Research has focused on three personalities which correlate with bullying behaviour and these come within what is known as the Dark Triad.10 There is extensive research on the subject which now provides valuable insights into how to understand and manage the different motivations of people who bully. Knowing the type of bullying personality is valuable as it will help to determine whether there is a possibility of remediation or changing destructive behaviours.

The Dark Triad [4.6] Personalities who deliberately inflict harm or are unable to see the harm they do to others, fall within the Dark Triad11 which has three component personalities: subclinical narcissism, machiavellianism and subclinical psychopathy. This constellation of personalities and behaviours correlates with bullying and other counterproductive work behaviours and

workplace deviance. It has been found that psychopathy most strongly correlates with bullying, followed by machiavellianism and then narcissism.12 The three personalities with Dark Triad traits share a number of features such as social malevolence and tendencies toward self-promotion, coldness, aggressiveness and duplicity.13 A recent 10-year review found that despite the [page 58] overlap between the personalities, there is a common core with three distinct constructs, each personality having its own motivations and strategies.14

Figure 4.1: The Dark Triad Each of these personalities is thought to have a ‘bright side’, although there are degrees of severity and functionality. For example, narcissists may be creative and innovative, high machiavellians may be good strategists and psychopathic personalities will go fearlessly where others fear to tread. When combined with intelligence, attractiveness, charisma and extroversion, those in the Dark Triad often find their way into leadership positions. Some are termed successful psychopaths and others successful narcissists, although all are considered socially aversive in the long term.15 When the costs of

employing destructive personalities become evident, the organisation faces difficult decisions. Unfortunately, many ignore the issue until it is too late and significant damage has been done.

Narcissism: its traits and attributes [4.7] Narcissism falls along a dimension ranging from normal healthy confidence, self-interest and self-esteem to antagonistic envy and vulnerability with regular perceived threats to self-esteem. Over time, many move further along the spectrum towards an unrealistic sense of entitlement, grandiosity and exaggerated self-regard especially if they have been promoted. In the early stages of their workplace relationships, [page 59] narcissistic personalities may be engaging and even exciting especially if they are in a leadership role. While they may have good results initially and take others with them in their success, it does not take long for the antagonistic traits to emerge, becoming socially aversive and leading to interpersonal conflicts with bullying.16 Two different types of narcissism, vulnerable and grandiose, have been defined and each of these has a different pathway and separate strategies. These are summarised in the table below. Although individuals are predominantly vulnerable or grandiose, the severity of narcissism may fluctuate in the direction of increased vulnerability or increased grandiosity. There is no defined cut-off point when narcissism becomes dysfunctional but rather slides up and down the scale from normal to severe depending on the degree of perceived threat. Both types remain entitled and antagonistic but the more vulnerable, anxious type may become symptomatic and seek treatment whereas the more extroverted, grandiose

narcissist does not normally see a need to change and becomes more aggressive and bullying. In the author’s observations, individuals at the very severe, malignant end of the grandiose scale of narcissism resemble psychopathy. When narcissistic individuals move to the extreme edge of grandiosity, their moral reasoning and strategic awareness deteriorate with greater impulsivity and risk-taking. The authors agree with Jones and Paulhus,17 who suggest that this type of extreme narcissism overlaps with psychopathy which is more dangerous to individuals, psychosocial safety and organisational functioning.

Narcissistic motivation and strategies [4.8] Whether they are grandiose or vulnerable, narcissistic personalities need to regulate their self-esteem above all else. They must strategise to repetitively assert superiority and manage perceived threats by seeking control and dominance. Such an agenda prevents normal collaboration with subordinates, peers and managers who are trying to achieve work-based goals. This creates confusion, frustration and leads to interpersonal conflict. When the narcissistic personality encounters disagreement or perceives a threat, it leads to bullying, undermining and manipulation of others to preserve self-esteem and dominance. The author has observed that bullying can begin when the threats are more anticipated than real when there has been no known provocation. [page 60]

Figure 4.2: Narcissistic dimensions

[page 61]

Narcissistically-based strategies used to regulate and maintain self-esteem include: derogating any information or feedback which is not favourable; distorting recall and restructuring past events to deny aggression or failures; insisting their abilities and accomplishments are superior; competing with others to bolster self rather than collaborating on tasks; exploiting, manipulating and using others to increase self-worth; reframing events to appear more favourable; actively seeking out more validation of superiority; denigrating or undermining others especially if they are high performers; and taking credit for others’ work. When severe, a narcissist’s awareness of the needs of others is minimal and the focus remains on preserving an inflated self-esteem. There is often no memory of their rages which is why, so many times, narcissists rage destructively then behave normally as if has nothing happened while others continue to suffer devastation in their wake. Morf and Rhodewalt18 assert that this is not conscious. The more extreme form of grandiose narcissism with its aggression and manipulation, poor empathy and callous self-interest is more likely to indulge in overt bullying. The vulnerable narcissist who is hypersensitive to criticism and antagonistic will also indulge in aggressive, covert manipulations as a strategy to maintain their fragile self-esteem. The difference is that initially grandiose narcissists may be very appealing with their high energy and attractiveness which heralds good leadership to recruiters. As time moves on, fluctuations in mood develop with narcissistic rages, bullying, distortion of memories and derogation of others, the destructive behaviour interferes with trust and reliability in relationships with fellow workers and colleagues. It

prevents effective coordination and collaboration with teams and the bullying leads to individual psychological injuries, at times severely traumatic. Campbell19 shows that in organisations and workplaces, narcissists do better in the early, emergent contexts than in the later, maturing contexts which require endurance. In the early phase, narcissists may do very well as they are capable of risk-taking in difficult situations and they meet short-term goals. Over time, as projects drift towards maturity and they become less likeable, it is possible they become bored, which research has [page 62] shown leads to counterproductive work behaviours, including bullying.20 This is discussed in more detail in Chapter 7 at 7.23 and following, where recruitment and management of narcissistic personalities are discussed.

The machiavellian personality [4.9] The concept of the machiavellian personality originated in social psychology when the construct was adapted from Nicolo Machiavelli’s book The Prince.21 Although Machiavelli provided some benevolent and positive advice to leaders, the central themes were self-interest, maintenance of power, management practice and manipulation of political influence. It is mostly used these days to describe the negative use of manipulation, strategy and callous manipulation within the Dark Triad. Their guiding philosophy is ‘do whatever it takes to get what you want’ and their main motivation is money. An example is Bernard Madoff, the New York financier who ruined the lives of his many clients, whose son committed suicide as a result of his father’s activities and who was given a prison sentence of 150 years. High machiavellian personality features described by Jones and Paulhus are: social manipulation;

cynical world view; others are seen as weak and having little control over their situation; strong interpersonal control believing they can manipulate others to get what they want; amorality; a strategic disposition and plans for the long term; pragmatic and tough-minded; harm to others is seen as a means to an end; low on communal values and high on self-interests; and do not reciprocate with others in teams.22 People matching the machiavellian profile are more likely to make ethically-suspect choices. Despite their view of themselves as skilful manipulators, research has shown that they do not have superior emotional intelligence with which to manipulate others, nor do they have exceptional cognitive abilities. What they do have is superior impulse control which is seen by others as higher drive, poise and leadership ability.23 An interesting [page 63] finding24 showed that high machiavellians put more cognitive effort into lying and do not enjoy it, whereas subclinical psychopaths derive excitement and pleasure from deceiving others, which again implies that high machiavellians are pragmatically motivated whereas the subclinical psychopath is motivated by dominance and impulsivity.25 Although high machiavellians may harm those around them at times, they also earn liking and respect especially when it is in their interest and they tend to remain cool and exploitative, often bending the rules. They engage in more

long-term extraction of resources from the host company where they embed and integrate into the community, mimicking empathy and legitimacy. The whistleblower, Harry Markopoulos, who exposed Bernard Madoff as a predator, claimed Madoff would hunt at social occasions and comfort a grieving woman, claim to take care of her and then ‘wipe her out’. In the meantime, everyone thought of him as ‘nice Uncle Bernie’.26 This complex deception makes it difficult to detect especially as machiavellian personalities seek out contexts which are unstructured with less monitoring and more decision authority. They naturally engage in impression management but they do not invest energy or loyalty to the organisation itself and they are low on citizenship behaviours such as reciprocity in the organisation. Machiavellian personalities will demonstrate complex mimicry which looks like empathy and belonging to an organisation over the long term but is always self-serving and deceptive. In hindsight, this is now clear in the case of Bernie Madoff, but for years the warning signs were ignored and not taken seriously given his sophisticated presentation and skilful impression management. Although they do not go out of their way to help others, high machiavellians do not regularly engage in extremely negative forms of overt anti-social behaviour although they may harm others to avoid discovery. For example, Harry Markopoulos, the whistleblower, was extremely wary of physical assault and carried a gun because of Madoff’s alleged connections with foreign mafia groups. In essence, high machiavellians remain focused on their subtle game-plan with a long-term view. If they do indulge in bullying, it is most likely a subtle, covert pattern designed to further a specific self-interested goal rather than serial, predatory or sadistic. Their anxiety may be more about exposure of wrong-doing than concern about relationships. Similarly, their harm to others may be more about destroying those who threaten their plans and objectives than narcissistic threats to ego or psychopathic

[page 64] impulsivity or sadism. The machiavellian personality, with sufficient intelligence, is more than capable of responding to challenges from senior personnel about their behaviour, which may have caused psychological injury or compromised the organisation. This means it is very difficult to hold them accountable even when they are abusive or undermining of others when out of sight. Machiavellian leaders may be seen as abusive by their subordinates but their subtle undermining tactics and covert bullying are less discoverable and would disempower targets and discourage HR and management at all levels.

The subclinical psychopathic personality [4.10] In contrast to the cool high machiavellians who take a long-term view and only covertly harm others who happen to get in the way, the subclinical psychopathic personality is known to bully others in a serial and predatory way in the workplace. Compared to narcissistic personalities who defend an inflated self-esteem, subclinical psychopaths are more likely to be impulsive, retaliatory, ruthless and primitive. The main motivations are power, dominance and self-interest. The initial presentation may impress others as offering certainty and control especially if higher values are espoused to gain followers and develop influence. People soon realise that the psychopathic personality has other traits: appear sophisticated and charming; appear fearless and shameless; destroy the morale and emotional well-being of their fellow employees;27 lying, humiliating, abusive;

deny adequate training to others; shift blame for their mistakes; bullying them and coercing others; show no empathy and no remorse for wrong-doing; appear authoritarian and dominant; does not actually have the espoused values or empathy for others; can be chaotic and impulsive; seeks stimulus, excitement and high risk-taking levels; and may have poor attention to detail and follow through. Both subclinical psychopaths and machiavellian personalities mimic empathy, although there is a different pattern. The machiavellian personality embeds into a network or community and begins a long, slow extraction of resources which is parasitic and almost impossible to discover. [page 65] The subclinical psychopath shows more short-term mimicking of empathy and preparedness to risk discovery.28 Successful psychopaths are more prone to use aggression to achieve their objectives. Bullying is serial, predatory and sadistic, usually seeking out new targets on a regular basis in search of an addictive excitement. The bullying strategy undermines targets by: isolating the target from supports; destabilising them with verbal attacks; setting them up to fail, denying resources, refusing training, preventing promotions without justification;

wearing the target down over time which leads to overwhelming stress or burnout; rendering them helpless, often annihilated and the bully uses their influence network to denigrate the target’s performance and get rid of them; and the psychopathic bully moves on, is often promoted and seeks new targets. This systematic and repetitive targeting with no empathy or remorse achieves the objectives of power and dominance. It instils fear and silence in observers and frequently no firm action is taken by the company, especially if they are threatened with litigation. Those with the power to act appear either not to know what to do or try to turn a blind eye. Often the target is blamed, the bully’s stories are believed and the organisation moves to support or join the bully. This is described more fully under ‘Mobbing’ at 4.15 below. A fourth dimension of the Dark Triad is emerging which suggests that sadism is more common and universal than previously thought.

Personality profiles of targets [4.11] Targets of workplace bullying are often described as submissive, anxious and neurotic, lacking social competence and self-esteem. This pattern appears to attract bullying because it is irritating to aggressive people but also the person who is quiet and introverted looks like an easy mark. People who are conscientious and over-achieving are also thought to attract bullying. Although the cases of Renee and Justin discussed in the previous chapter may fit this picture, it is not necessarily a generalisation. There are proactive targets who are assertive and effective. They assess hostility towards them by standing back and reflecting or assessing the basis for the attacks, whether they have drawn fire with their own behaviour and whether there were any mitigating factors. If they are emotionally stable, selfmonitoring and reflective, targets will evaluate their options and the consequences of retaliation. Some will decide to act proactively using

[page 66] complaints and policies to bring the behaviour to light, while others may have the same impulsivity and manipulative-characteristics as the bully, which would lead to escalation of conflict. Proactive targets are less likely to be destabilised in the short term but may develop symptoms of stress if they find they are unable to stop the abuse in the long term. In our experience with Australian targets who have sought treatment, the target personalities were more often extroverted and popular, relational, assertive and high performing. This attracted envy and bullying, both individual and systemic, and deserves further study as a ‘tall poppy’ syndrome. Examples follow, mainly of women bullying women. Scenario 1: A new manager in a healthcare setting began bullying a younger direct report from her first day. The younger professional was outgoing and popular with her peers and clients. The new manager was repeatedly aggressive and tried to conceal the younger woman’s qualifications as they were superior to her own qualifications. She escalated the abuse until the young woman decided to get out of the line of fire while she was still functional. She was deeply distressed and perplexed by the bullying but decided to seek other less satisfying employment to avoid the bullying and continue to make a living. Scenario 2: After one year in her role, a university manager’s direct report delivered an outstanding, profitable result. The manager immediately changed from her friendly warmth to overt aggression, spreading false rumours, yelling and denigrating her in front of others. The manager eventually succeeded in her objective and bullied the successful direct report out of her job, presumably because the manager saw her outstanding results as a threat rather than an asset. Scenario 3: A professional woman obtained her PhD in a specialised health area. As soon as she received her higher qualification she was targeted for bullying by her new manager who tried to set up false accusations and to undermine her work and relationships. Fortunately the manager was stopped by the director who could see the manager’s envy and fear of competition. She prevented the manager from bullying the young woman out of her job.

Each of these women sought help to recover from the bullying although it had damaged their trust and led to fears of bullying happening again in new contexts. In Scenarios 1 and 2, the targets maintained their self-esteem and

continued to maintain their ability to function but only by leaving the workplace. If bullying is permitted to progress and no action is taken by the organisation, the target is ultimately manoeuvred into a position in which they are unable to defend themselves or move away. Being unable to fight back or escape can be situational if there is no job availability and the target is dependent on the job for an income. Dependency may also become psychological if the target’s self-esteem, confidence and capability have deteriorated as a result of bullying. [page 67]

The sense of coherence: is it a protective factor in targets of bullying? [4.12] The previous chapter described how the ongoing stress of bullying dismantles each individual’s basic assumptions that they have self-worth, can regulate and manage their emotions, trust the good intentions of others, make sense of the world and find life meaningful. A sense of coherence summarises these basic assumptions as an expression of the extent to which a person has an enduring feeling of confidence, optimism and good stress resistance. The person with a high sense of coherence believes that the workplace is predictable and structured, the work is manageable and meaningful. In an original study by Neilson, Mathieson and Einarsen29 it was thought that people with a high sense of coherence and who are committed to their work, would be more resilient to stress and bullying than those with a low sense of coherence. Furthermore it was expected that with a high sense of coherence, the person would be healthier, would recover from bullying more quickly and would remain healthy. In contrast, persons with a weak or

undeveloped sense of coherence were expected to be less flexible, have fewer coping resources and be more severely injured by bullying. The study found that those who had a high sense of coherence were certainly more resilient to mild bullying in short time-frames. However, when exposed to intensive bullying over a longer period, they not only lost their resilience but their basic assumptions were shattered to a much greater extent than those with a low sense of coherence. This finding is similar to the author’s clinical experience, demonstrated in the case of Renee, whereby people who are conscientious, high achieving with a strong sense of self and committed to meaningful work, develop more symptoms of complex traumatic stress. These severe symptoms include a loss of the meaning of life and work and often lead to suicidal thoughts. It is possible that those who have lower self-worth or have survived past adversity may have become pragmatic, less engaged with work and relationships and may therefore be less disillusioned by bullying. This is a dismal scenario for organisations in which conscientious, dedicated and loyal workers who are creative and innovative, are more deeply injured and often expelled from the workforce. Those with a high sense of coherence are even more disillusioned if there is no effective action taken to stop the bullying, restore fairness and uphold organisational justice. Some will put up a fight to manage their moral outrage and fight for justice. In contrast, it is possible that those with lower expectations and less engagement may assume bullying to be just more of the same, are not so shocked and may be simply pragmatic, cynical and move on. [page 68]

Tips for dealing with bullying personalities [4.13]

Assess the dominant motivation for bullying and consider how to

respond using the tips in the table below: Personality

Motivation

Management Tips

Narcissism grandiose, arrogant; entitlement and sense of superiority;

defending selfesteem

do not be influenced by charm or playing the victim; be aware that narcissistic personalities become socially aversive in the long term;

self-promotion, overclaiming their ability;30

clarify the organisation’s expectations of behaviours and psychological safety;

interpersonally aversive (Paulhus, 1998).

inform the alleged bully about detailed psychosocial safety policies; assess through interviews and history whether they can collaborate without harming others; consider giving them short-term projects as they may do well initially. Machiavellianism cynicism; amorality; belief in the utility of manipulating others (Christie and Geis, 1970);

achieving money, power and influence

insist on a firm psychological contract and emphasise obligations to people; structure so that their obligations to the company come before selfinterest; implement strong boundaries from the highest authority;

exploiting a range of duplicitous tactics to achieve their goals (Jones and Paulhus, 2009).

make sure the organisation has sufficient structure to contain this individual; monitor for deception and callous disregard for others.

Subclinical psychopathy Psychopathy is characterised by manipulation

dominance; control without

monitor and document patterns of serial predatory bullying;

callousness,

constraint;

create strong controls above them and emphasise the hierarchy’s dominance;

[page 69]

low impulsive control risk-taking lack of anxiety or fear, antisocial tendencies (Hare, 2003; Williams, Paulhus and Hare, 2007).

sadism

name the unspeakable — describe impact and consequences of serial, sadistic bullying; assess the psychopathic level of chaos and risktaking; be prepared to face down threats of litigation when held accountable; assess the person’s risk of injuring others and the organisation’s liability; assess the company’s appetite for risk; assess the level of energy and courage in the leadership; ensure there is active support in senior leadership before action.

General caution when working with individuals [4.14] If possible, use the recruitment stage to assess closely and do not employ individuals who have these characteristics. People who are more stable, even if less entertaining, will go the distance and achieve results. If there are specific tasks which could be a fit with the personality, use shortterm contracts and include a psychological contract which defines behavioural accountability. If the individuals are already employed and have been bullying others:

resist feeling charmed and manipulated; do not hand over the reins to someone while you think they are superman/superwoman; if you take a chance on employing a person in the Dark Triad, stay at the helm; and have the courage to terminate them in spite of threats or playing the target.

Group conflict and mobbing [4.15] Mobbing is slowly being recognised as a different phenomenon to workplace bullying and there are still problems with its definition. In general, it is described as a combination of aggression which may be verbal or physical, together with denigration of the other’s professional competence, showing contempt and isolating the target from the group in the workplace. Duffy and Sperry describe mobbing as follows: Workplace mobbing is a destructive social process in which individuals, groups, or organisations target a person for ridicule, humiliation, and removal from the workplace. It is unlike anything most have ever experienced. Its victims, their family members, friends and co-workers are

[page 70] frequently unable to make sense of the experience or to mobilise resources for recovery. It leaves the victim reeling, not knowing what has happened, why it happened, and, most important, what will happen in the future. Being mobbed can take away a victim’s sense of safety and security in the world, sense of identity and belonging and the belief that the world is a fair and just place. It frequently leads to deteriorating physical and mental health. Suicides and violence, including homicides, have occurred following mobbing. Inevitably, mobbing leaves a trail of devastation for victims, their family members, and the workplace organisations and institutions in which it occurs.31

Mobbing is frequently orchestrated by informal alliances or groups and

bystanders may be drawn in and convinced by the group. Observers may also be coerced into joining the mob for fear that they will also be stigmatised if they associate with the target or are seen to support the person. In the case of Renee in Chapter 3 at 3.21 and following, a supportive bystander would only meet her outside the workplace to tell her that the group had planned her expulsion before she even arrived in the new job. Having a PhD apparently meant that she did not fit with the group who were known to have achieved mediocre results. The group preferred to keep their less demanding work norms and had a more favoured contender for the position. Leymann32 first described the mobbing process as a series of hostile actions which progress in phases from individuals towards the larger organisation. He described the actions as including: refusal to allow the target to have a voice through criticism, mocking and denigration; isolating the target and exclusion from the work group through refusal to talk or respond to the target; showing contempt with gossip, rumours, ridicule and defined as mentally ill; professional discredit of the target by manipulation of work tasks to bring about failure or humiliation (the case of Renee); exposing the target to tasks that are dangerous and harmful for his/her health (the cases of Nina and Justin). These actions are often triggered by a small event which activates a group response as if they are primed for conflict. Mobbing then goes through a number of phases. Shallcross33 has built upon Leymann’s phases as follows: [page 71]

Figure 4.3: Shallcross34

[page 72] When a complaint is made and the larger organisation becomes involved, an inexorable mobbing process of defensive denial of responsibility and blaming the target develops as described by Shallcross.35 This finding is applied to the following two examples. Both cases are within a large organisation in the Australian public sector where the culture is rule-oriented and bureaucratic. Policies and codes against mobbing and other types of

workplace abuse are expected to be in place but are inconsistently enforced. Management is hierarchical and accountability is limited in its concern for the well-being of employees. In the following examples, senior and middle level employees are targeted for bullying. Case example: Renee and mobbing Renee initially trusted that there would be a fair process within her department and that the problems would be addressed. In terms of Leymann’s phase process, the following occurred: Phase 1: Unresolved conflict: The trigger was minor as it often is. When Renee was asked how she would like to be addressed she replied as Doctor, as she had a PhD. She was told ‘that won’t go down well around here’. Later it became known that the intent to exclude and eliminate Renee had been planned before she arrived, as the group had a preferred candidate. Phase 2: Psychological assaults: Exclusion and isolation: Renee’s emails and requests for information and support were ignored, so that she had no voice. People did not welcome her, orient her to the workplace or speak to her normally from the first week in the job. She was verbally abused by a staff member for not fixing something which had happened the previous year and was out of her jurisdiction. Those in her charge were unruly and contemptuous. Her attempts to respond or seek support and information were ignored by senior management. Her attempts to fulfil her stated role to improve standards were resented and ignored. She was threatened with physical assault by a client and this was ignored by management. Phase 3: Management escalation of conflict: The bureaucracy did not respond with adequate support at that time. The policies and processes were ignored even though it was insisted that Renee had to follow process when she had a complaint. Phase 4: Labelling: Renee’s stress levels increased, she developed physical symptoms and took stress leave. She complained that the inaction and blaming was causing her to lose belief in herself and in organisational fairness. She showed signs of traumatic stress and had suicidal thoughts. Her symptoms were considered to be a mental illness. This alienated those at organisational levels, although nothing was done to address the bullying behaviours. [page 73] Phase 5: Expulsion: The organisation made numerous moves to prevent her from returning to work and to expel her from the system. Renee was at risk of not being able to

make a living and support her family. Work in her professional role was an essential part of Renee’s identity and returning to work would have helped to restore her to health.

In each case the organisation denied liability. Legal action may have seemed to be the only option, although this route has had mixed results in the past. In the first case of academic mobbing, the court action was successful given that the target had sufficient resources and support to succeed in gaining a settlement. Others who have litigated received paltry outcomes which did not enable training or a career change. The results were states of helplessness, shame, loss of self-worth and disillusionment. Some, who were forced to exit their employment with few resources and support, have never returned to work. Others lost all meaning in life, their sense of belonging and have committed suicide. When people pursue a new career it represents numerous losses such as: loss of a loved profession which has been built over many years of study and experience; loss of reputation and career progression; fear of the future; strain on marriage and family; and loss of financial security. It seems that in some cases there is no means of enforcing an organisation’s responsibility to implement health and safety regulations unless there is an oversight by a regulatory body. In the above case examples, there seems to be no concern with the individual’s well-being once the target is labelled and blamed as in phase 4. Most people who have been mobbed do not have the financial resources to embark on legal action. When there is a family to support and loss of job security, it is extremely difficult to start a new career. Moreover, enduring mobbing over time will, at the very least, wear down the person’s emotional

resources but more often creates a level of stress which is exhausting, leads to physical symptoms and can be disabling. In this physical and emotional state, it is almost impossible to face recruiters and potential employers who are wary of applicants who have been bullied in the past. Opportunities for change and post-trauma growth become limited.

Tips for managing group conflict and mobbing [4.16]

Tips for managing group conflict and mobbing include:

Mobbing often starts with a small conflict. Intervention must be very early before it gathers momentum. [page 74] If upper organisational levels are complicit with the bullying, defending their positions and labelling or blaming the target, it is better to leave an organisation that is toxic. Individual responses

Assess the situation to know if you have any influence or power to stop the bullying and mobbing Check the mission statements, values and policies in the organisation. Do they include employees’ well-being and psychosocial safety standards or do they focus on shareholders, profitability and accreditation standards? Assess the motivation and attitudes in HR and management to uphold the policies and values if they do exist. Monitor your physical and emotional health Check with your doctor about physical signs of stress. Monitor your sleeping patterns. Check with family and friends about their perceptions of you. Recognise signs of anxiety, depression and inability to think as

you normally would. Check if you are avoiding situations or working to your capacity. Check your confidence, sense of humiliation. Prepare Document both overt and covert mobbing behaviour. Find out your rights and seek supports — unions, lawyers. Begin to check out other employment opportunities. Keep well Use family and friends for support — don’t go quiet! Use a counsellor experienced with bullying and trauma. Use exercise and mindfulness, and yoga to help with stress and anxiety. Manage your time to get rest and distraction. Keep outside work activities going. Making a complaint: assess their responsiveness Do HR and managers accept the mobbing behaviours as normal, deny the problem, expect you to toughen up and be more resilient? Do they listen, mediate with the group early rather than later? Do they provide training and coaching to change behavioural expectations and accountability? Do they implement consequences for violations of safety policies, company values and legalities?

[page 75]

Making decisions If there are no policies or they are not implemented consistently with fairness, consider leaving. If you leave it too late to get out of a toxic situation, you will gradually lose energy, confidence and options in other places. Don’t wait until you are depressed to speak up or leave. Organisational responses

HR and managers

Assess the culture—is it toxic? Move on early signs of toxic communications such as escalating gossip. Identify ring-leaders of mobbing and, if possible, influence them. Inform the group of policies, accountability and consequences for violations of agreed values, policies and codes of practice. Organise a training and coaching program. Make covert mobbing transparent and name it as bullying and mobbing. Assess structures and processes which enable mobbing activities. Analyse job demands and sources of work stress. Plan interventions based on an appreciation of contexts and individual differences.

_______________ 1

M Inness, J Barling and N Turner, ‘Understanding Supervisor-Targeted Aggression: A WithinPerson, Between-Jobs Design’ (2005) 90(4) Journal of Applied Psychology 731.

2

Inness, Marling and Turner, above fn 1.

3

P K Jonason and G D Webster, ‘A Protean Approach to Social Influence: Dark Triad Personalities and Social Influence Tactics’ (2012) 52 Personality and Individual Differences 521.

4

R Griffin and Y Lopez, ‘Bad Behaviour in Organisations: A Review and Typology for Future Research’ (2005) 31(6) Journal of Management 988.

5

M Bollard and T Bailey (eds), The Australian Workplace Barometer: Psychosocial Safety Climate and Working Conditions in Australia, Australian Academic Press, 2014.

6

Australian Workplace Barometer, p 150.

7

Safe Work Australia, The Incidence of Accepted Workers’ Compensation Claims for Mental Stress in Australia, Canberra, 2013, at .

8

M Harvey, D Treadway and J Heames, ‘The Occurrence of Bullying in Global Organisations: A Model and Issues Associated with Social/Emotional Contagion’ (2007) 37(11) Journal of Applied Social Psychology 2576 at 2585; S Einarsen, Bullying and Harassment in the Workplace: Developments in Theory, Research and Practice, 2nd ed, Taylor and Francis Group, 2011.

9

C Caponecchia, A Y Z Sun and A Wyatt, ‘“Psychopaths” at Work? Implications of Lay Persons’ Use of Labels and Behavioural Criteria for Psychopathy’ (2012) 107 Journal of Business Ethics 399.

10

R Hogan and J Hogan, ‘Assessing Leadership: A View from the Dark’ (2001) 9 International Journal of Selection and Assessment 40.

11

Hogan and Hogan, above fn 10; D Paulhus and K Williams, ‘The Dark Triad of Personality: Narcissism, Machiavellianism and Psychopathy’ (2002) 36 Journal of Research in Personality 556.

12

H Baughman, S Dearing, E Giammarco and P Vernon, ‘Relationships between Bullying Behaviours and the Dark Triad: A Study with Adults’ (2006) 52 Personality and Individual Differences 571.

13

Paulhus and Williams, above fn 11.

14

A Furnham, S Richards and D Paulhus, ‘The Dark Triad of Personality: A 10-year Review’ (2013) 7 Social and Personality Compass 199.

15

A Furnham, S Richards, C Rangle and D Jones, ‘Measuring Malevolence: Quantitative Issues Surrounding the Dark Triad of Personality’ (2014) 63 Personality and Individual Differences 114.

16

W K Campbell, ‘“Isn’t it Fun to Get the Respect that We’re Going to Deserve?” Narcissism, Social Rejection and Aggression’ (2003) 29 Personality Social Psychology Bulletin 261; J A Meurs, S Fox, S Kessler and P Spector, ‘It’s all About Me: The Role of Narcissism in Exacerbating the Relationship Between Stressors and Counterproductive Work Behaviour’ (2013) 27(4) Work and Stress 368.

17

D Jones and D Paulhus ‘Machiavellianism’ in M Leary and R Hoyle (eds), Handbook of Individual Differences in Social Behaviour, Guildford Press, 2009.

18

C Morf and F Rhodewalt, ‘Unravelling the Paradox of Narcissism: A Dynamic Self-Regulating Processing Model’ (2001)12(4) Psychology Inquiry 177.

19

W K Campbell and S Campbell, ‘On the Self-regulatory Dynamics Created by the Peculiar Benefits and Costs of Narcissism: A Contextual Reinforcement Model and Examination of Leadership’ (2009) 8 Self and Identity 214.

20

K Bruursema, S R Kessler, and P E Spector, ‘Bored Employees Misbehaving: The Relationship between Boredom and Counterproductive Work Behaviours’ (2011) 25(2) Work and Stress 97.

21

R Christie and F Geis, Studies in Machiavellianism, Academic Press, 1970.

22

Jones and Paulhus, ‘Machiavellianism’, above fn 17.

23

D Jones and D Paulhus, ‘Different provocations Trigger Aggression in Narcissists and Psychopaths’ (2010) 1 Social Psychological and Personality Science 12.

24

S Kessler, A Bandelli, P Spector, W Borman and L Penney, ‘Re-examining Machiavelli: A ThreeDimensional Model of Machiavellianism in the Workplace’ (2010) 40(8) Journal of Applied Social Psychology 1868.

25

P Jonason, H Baughman, M Lyons and P Vernon, ‘What a Tangled Web We Weave: The Dark Triad Traits and Deception’ (2014) 70 Personality and Individual Differences 117.

26

A Clark, ‘The Man who Blew the Whistle on Bernie Madoff’, The Guardian Newspaper, 24 March 2010, at .

27

R Hare, Without Conscience: The Disturbing World of Psychopaths among Us, Guildford Press, 1999.

28

D Jones and D Paulhus, ‘Into the Short Dark Triad (SD3): A Brief Measure of Dark Personality Traits’ (2014) 21(1) Assessment 28.

29

M B Neilson, S B Mathieson and S Einarsen, ‘Sense of Coherence as a Protective Mechanism among Targets of Workplace Bullying’ (2008) 13 Journal of Occupational Health Psychology 128.

30

K M Williams, C Nathanson and D Paulhus, ‘Identifying and Profiling Scholastic Cheaters: Their Personality, Cognitive Ability and Motivation’ (2010) 16(3) Journal of Experimental Applied Psychology 293.

31

M Duffy and L Sperry, Overcoming Mobbing: A Recovery Guide for Workplace Aggression and Bullying, Oxford University Press, 2013, p 1.

32

H Leymann, ‘Mobbing and Psychological Terror at Workplaces’ (1990) 5(2) Violence and Victims 119.

33

L Shallcross, ‘Severe Workplace Conflict: The Experience of Mobbing’ (2013) 6(3) Negotiation and Conflict Management Research 191.

34

Adapted from Shallcross, above fn 33, p 200.

35

Shallcross, above fn 33, p 197.

[page 77]

Chapter 5 Contexts, Causes and Consequences Introduction [5.1] Bullying, as an interpersonal and social phenomenon, is enabled by both internal organisational working conditions and external socioeconomic pressures. This chapter considers the interaction of personalities and behaviours with work conditions and global developments in work-life practice. Even if each bullying case is unique, it is important to recognise both the individual and systemic factors that have contributed to a specific bullying incident or to the development of a toxic culture. The consequences of bullying are far-reaching in their impact on individual well-being, as well as the functioning of work groups and their productivity. Bullying, if not addressed, can also influence the culture and change the work group’s norms. Ultimately, staff turnover, retention and the reputation of the organisation are also at stake. It is therefore essential to explore the systemic antecedents of bullying in any organisation for effective intervention and the design of preventive strategies.

The broader context and global companies [5.2] Global socioeconomic conditions have changed the working life of employees in both international and domestic organisations. The impact of the GFC, increased global competition, a faster pace of change and the development of technology and communications have demanded change in most organisations. Adaptation at the organisational level has led to changes

in the nature of the workforce, including more part-time, casual work, shortterm contracts and outsourcing, often resulting in job stress and insecurity. In international companies, there are particular conditions that affect behavioural accountability. Harvey et al state that: Bullying behaviour in organisations is associated with decreased productivity, less commitment to the organisation, lower morale, higher levels of turnover, occupational pressure/stress, and increased levels of tension/conflict among employees.1

[page 78] Harvey lists five main features of global companies that contribute to a rapid escalation in workplace bullying and interfere with effective preventive strategies. They apply as much to international companies within Australia as in overseas settings. 1.

The remote locations and ‘geographic dispersion’ of employees, suggest that distance frequently leads to less engagement and commitment to addressing bullying.

2.

Increased diversity in values, expectations and practices leads to miscommunications and difficulty developing shared norms.

3.

The variety of formal/legal remedies complicates controlling aberrant behaviours.

4.

Lack of experience of expatriate managers to address global bullying suggests their knowledge of local norms and legalities could be insufficient to address such a complex set of social issues.

5.

The high rate of change during globalisation of organisations does not allow time for development and implementation of effective policies and procedures to address aggressive/abusive behaviours in the organisation.2 The gaps in structures and lack of experience in these contexts can allow

bullying behaviours to gain influence in what is now called ‘social contagion’. If observers tolerate or acquiesce in bullying, the behaviours are more likely to influence others and grow a toxic cultural norm. Once such norms develop and become embedded, it is extremely difficult to change and ultimately affects the performance of the organisation.

Internal organisational factors [5.3] In Australian domestic companies, work conditions have also changed over the last two decades. The quantity and pace of change and technology, together with global competition, have contributed to psychosocial risks that are difficult to manage. Employees work more but with fewer resources, develop new sets of skills on the job (often in an unreasonable timeframe), demonstrate greater flexibility and higher levels of resilience, and put work before family. Many Australians have adapted to current conditions but significantly longer working hours and increased emotional and physical exhaustion also contribute to bullying. According to the Australian Workplace Barometer ‘the heavy and growing burden of work stress to society, the worker and business is not sustainable’.3 Within this context, maintaining and monitoring organisational coherence may be difficult to achieve. Nevertheless, the coherence of [page 79] organisational procedures is known to be ‘essential for organisational effectiveness and for maintenance of civility and mutual respect in the workplace’.4 It has been established that ‘coherent, well-organised workplaces show very little interpersonal conflict, whereas chaotic workplaces lead to conflict and a toxic workplace environment, in which bullies thrive and

dominate the culture’.5 Coherence is generally defined as ‘logically consistent’ so that all the separate parts fit together and add up to a harmonious or credible whole. Within coherent organisations three essential principles have consequences for employees. Hodson outlines these principles as follows: Transparency refers to the likelihood that bullying behaviour will be visible to all; Accountability refers to the probability that the behaviours of bullies will rebound badly on them; Capacity refers to the organisational ability to motivate and control employees through visible rules and rewards.6 The establishment of procedures and rules is seen as a maturational step in an organisation aiming to increase motivation and establish requirements that behaviour is civil and professional. It is intended to institute controls that facilitate performance, well-being and profitability. When these are exercised by leadership, with balance and flexibility, there is no need for coercion or bullying.7 When an organisation is destabilised, whether from external socioeconomic forces or internal dynamics and work characteristics, the pressure must apply to individuals at all levels in an organisation. Internal factors include individual differences in leadership and vision, management practices and development of organisational skills, flexibility and resilience. The result of unmanageable pressure is stress, which disrupts the ability to think, organise and plan. If individuals, at any level, break down under stress there is a flow-on effect and organisational coherence is in jeopardy. It is therefore important to consider those structures and processes in an organisation which serve to maintain coherence. Although hierarchies may be considered out of date, they do fulfil the need for order and create trust, a belief in organisational justice and the felt sense of safety that contributes to employee well-being. As in any social system, hierarchies can become

unbalanced when leadership is too laissez-faire or too authoritarian and there is always the risk of a self-interest agenda dominating organisational goals and communal values. Even in a stable hierarchical system, the [page 80] regular monitoring and review of structures and processes8 contributes to a healthy, adaptable culture.

Organisational coherence and the psychosocial safety climate [5.4] The Psychosocial Safety Climate (PSC) is defined as ‘the shared perception of organisational policies, practices and procedures that are developed and implemented by senior management for worker psychological health and safety’.9 In Australia, the PSC has been found to be a ‘lead indicator in the prevention of workplace stress’. It precedes work conditions and influences interpersonal factors and psychosocial risk factors such as work pressure and job control.10 Again, formal requirements and procedures, designed to monitor fairness and justice, lead to a sense of safety and trust in the system’s capacity to respond to bullying and other counter-productive workplace behaviours. The managerial capacity to implement policies promotes civility and professionalism that, in turn, reinforces managerial legitimacy and strengthens the managerial structure. When the formal requirements of PSC are not developed and PSC is low, there are higher levels of bullying. It is clear that policies are essential and must have sufficient detail about anti-bullying for employees to understand which behaviours are unreasonable, the impact they have on others, the process of investigation of complaints and the consequences for those who bully others. It is also essential that the policies

are communicated through all available channels in a programme of raising awareness.

Ethical leadership [5.5] When the leadership models ethical values and supports the policies, employees are more likely to follow. Leadership support for anti-bullying creates an ethical climate that influences and limits the development of bullying in an organisation. The strength of the ethical climate can be determined by how strongly employees are attached to its policies and norms. When organisations convey clear messages to employees about behavioural expectations and a reward and punishment system reinforces those messages, the organisational climate is stronger. Leadership is the crucial element necessary to the values of the organisation and the coherent design of organisational structures which underpin culture, environment and safety. It is the leadership which ultimately influences and manages bullying behaviours at every level. [page 81] Leadership can be neither laissez-faire nor rigidly controlling and must strike a balance which is informed, reflective and decisive. Both gaps in leadership and unethical leadership will affect structures, culture and safety that in turn enable counter-productive work behaviour and bullying. Insufficient structure or monitoring of psychosocial safety allows the dominance of dysfunctional personalities who are attracted to organisations with weak structures or poor values. If bullying is tolerated and formal policies are not implemented at the highest leadership levels, the culture becomes potentially toxic and may over-ride future leadership efforts to introduce change.

The impact of work characteristics [5.6] The psychosocial safety climate builds upon the well-known understanding that high job demands and low job resources increase bullying over time. Job demands are those aspects of the work that tax workers’ personal capacities. Job demands include: cognitive, emotional and physical demands; the pace and nature of change; role conflict and role ambiguity; bullying and harassment; and work and family conflict. Job resources are those aspects of the work which enable effective functioning and meet the demands of the job. Resources also enable achievement of work goals and stimulate growth and learning that include: personnel, tools, materials and technology which match the goals; task autonomy, initiative and latitude in decision-making; social support from managers, supervisors and co-workers; and use of skills and expertise. If job demands are beyond the capacity of an individual, they are healthimpairing leading to stress and burnout.11 In contrast, job resources may be motivational, challenging and contribute to work engagement. If there are sufficient resources and enough autonomy and decision-making, individuals can use their skills effectively also encouraging problem-solving and innovation. Management commitment to support psychosocial safety policies improves the system’s coherence by aligning job demands with resources and encouraging organisational engagement. Thus, commitment to psychosocial

safety not only supports a coherent structure but also supports an ethical climate that reduces stress and bullying. [page 82]

Autonomy and roles in teams at work [5.7] The team-based organisation of production enables workers to participate in work decisions. When employees see their own skills, cooperation and attitudes as important to an organisational objective, they are motivated by shared values of cooperation and reciprocity that lead to trust and respect between management and staff. When a team works well it stimulates employee innovation, problemsolving and engagement. Job satisfaction, a sense of belonging and pride in the work results from being part of a group which is trusted to have some degree of control over decision-making about day-to-day operations and activities. Studies have repeatedly shown that there is reduced bullying in such teams and that having a shared understanding of the policies and rules also reduces bullying. In these environments there are higher costs for potential bullies when the rules and accountability are visible (transparency) and management has the capacity to use the rules and rewards to motivate and monitor workplace practice (accountability).12 It is also clear that trust and commitment of employees to an organisation, based upon a coherent structure with clear rules which are protective of well-being and safety, strengthen the culture and the organisational outcomes. Moreover, within a clear structure such as this, it is possible to provide more autonomy and decision-making which in turn promotes innovation and effectiveness.

The interaction of personality, structures

and processes [5.8] Bullying may result from workplace stressors such as role conflict and ambiguity, excessive job demands with the lack of resources, poor communications, a lack of autonomy and job insecurity. Within the consideration of contributing factors, there is often an implicit tendency to ignore the dysfunctional personality of those who bully repeatedly or serially. Balducci et al13 found that the personality of the perpetrator has been largely ignored or has been difficult to research, given the lack of cooperation by alleged perpetrators in research studies. Despite all efforts to provide organisational coherence and strong structures, bullying prevalence remains high in some organisations. The Australian Workplace Barometer found that South Australia has high levels of bullying policy and procedures within organisations (81%) yet the levels of bullying also remain high. First, ‘the bullying rates could be even higher if there were no policies; second, policies could be more well-targeted and implemented more effectively; and third, it was unknown [page 83]

Figure 5.1: The impact of work characteristics on employee effectiveness

[page 84] whether the policies were targeted and implemented at the management of bullying or its prevention’.14

These are important questions to explore. Our experience suggests a fourth possibility, namely that there is a percentage of the population who are unable to change their behaviours and functioning, despite feedback, penalties and the cost to themselves and others. An interaction of all factors, structural and personal, is illustrated in the scenario below. Case example: The supervisor A supervisor regularly alienated staff with her aggressive interchanges and inability to plan, which prevented collaborative team relationships. After some time, she was told by senior management that her contract would be terminated if things did not improve. The job insecurity only increased her anxiety and exacerbated her chaotic management, poor communication and aggressive behaviours. The target at the time sought external counselling in an effort to manage the stress of being subjected to her supervisor’s behaviour. The supervisor attempted to shift blame for her failures by publicly accusing and humiliating staff, but these tactics were transparently manipulative to her senior managers. In place of self-awareness and a willingness to develop her planning skills, the supervisor remained hostile and suspected her subordinates were undermining her, whereas they were actually afraid of her and tried to avoid contact. As anxiety and stress escalated for both the supervisor and subordinates, the workgroup became increasingly chaotic and dysfunctional which led to dissatisfaction among clients with threats of loss of business. Stress in the team was almost unmanageable as people complained that they could not sleep, were having panic attacks and physical symptoms such as headaches and nausea. Some staff were frequently on the verge of exploding with anger while others withdrew and took more sick leave. Some lost trust, became less engaged and silently prepared to leave. The downward spiral required timely intervention but there was no implementation of safety policies or behavioural accountability at the HR level. In a climate of job insecurity, staff were afraid to complain for fear of attracting blame or losing their jobs. The supervisor complained to her managers that her workload was too high to explain her bad temper. Her managers tried to support her by helping her to organise a coherent plan with appropriate structures of communication and processes. They did not discuss or implement psychosocial safety policies or enforce behavioural accountability at that stage. The lack of coherent plans and processes was one cause of the problem and the assistance to develop more structure was helpful in the short term. [page 85] However, the supervisor lacked self-awareness and blamed others for failures and for her own aggressive behaviour. Her ability to change or to adhere to the plan was limited and she resumed her bullying behaviours. She eventually lost her position.

Analysis of the supervisor case example [5.9]

Note the following factors in this example:

Although policies were in place, HR did not make the policies known nor did they agree to intervene which meant it was left to management to manage. The managers tried a gentle and helpful approach but did not confront the behaviours with policy, expectations and consequences. It is unknown whether the policies were customised to the organisation or were generic, nor was it known whether the policies had been effectively communicated to all employees. People behaved as if they did not trust that there would be an effective implementation of an anti-bullying policy. There was no coherent planning of projects and consultation with staff and the resulting confusion jeopardised client satisfaction. Chaotic work demands and bullying created stress that posed a risk for psychological injuries. Role clarity and timing were unspecified which led to problems at the interface with other teams. Clearer communication with other teams was absent. Personality factors played a significant part in the continued bullying behaviours. The supervisor had ongoing problems with self-awareness, managing her emotions and insight. The interaction between structures and personality are evident when people bully or undermine others in response to frustration or job insecurity, both of which were illustrated by the supervisor in this case example. Bullying behaviours often stop when resources are provided, which works well in environments with a high psychosocial safety climate when the policies and processes are well developed and implemented. The provision of resources appears to works less well in environments with a low psychosocial safety climate where policies and procedures are not developed or implemented.15

In the supervisor example, the managers tried to resolve the issue by focusing on resources and helping the supervisor to plan and organise her work. They did not address the organisation’s values, policies and expectations about her behaviour and manner of communication. Staff had little power in the hierarchy of this organisation and were at serious risk of psychological injury from the supervisor’s abuse. They were [page 86] unwilling to approach HR who had rejected requests for help in the past so trust that the organisation valued staff well-being was low. If the unhappy staff had openly retaliated, escalated the conflict and reduced their commitment to the business, there would have been substantial costs to the business and loss of clients. If there were psychological injuries, it would have resulted in further costs for recovery, insurance premiums, litigation and reputation. Clearly bullying can be a costly business. In practice, the Psychosocial Safety Climate in this large, national organisation was surprisingly low. It seemed that HR had not effectively communicated policies on behavioural accountability and they referred the complaint back to the managers. The supervisor appeared not to know the shared values and behavioural expectations of the organisation that may have been more implied than explicit. Management’s ability to work with difficult personalities is variable. In this case, the managers started with a gentle, reasonable approach and helped the supervisor to cope with planning but they did not emphasise expectations and consequences. Their approach may have been the result of inexperience managing difficult employees. This case demonstrates that personality can be a factor. It also shows that the response to bullying behaviour should include consideration of the

personality in a comprehensive and informed approach to each case. To manage the supervisor, in this case, would have required: consideration of job resources and training for the supervisor; communication of the organisation’s values, expectations and policies; clear explanation of the consequences if her bullying behaviour continued; assessment of the supervisor’s self-awareness and her ability to reflect and change management liaison with HR about their role in the case.

Protecting oneself as a leader [5.10] The interaction between contextual factors and personality differences is a complex area given that people and personalities vary widely. If there is a majority of honest, mature and high-functioning colleagues and employees, the workplace is lively and engaging with effective outcomes. Instead, many managers and HR who are trying to manage bullying cases are confronted with conflicting stories, plausible blame-shifting, high-flying charmers, self-interested agendas, masked incompetence, malingering, stress, trauma and work-family conflicts. Working with people, conflicts and counterproductive workplace behaviours is seldom simple, often stressful and requires self-care. It is important for managers and HR dealing with such problems to manage their stress by cultivating mindfulness and a stress-reduction practice to help maintain a capacity to reflect. It is also important to develop and utilise a network of mentors and supports. [page 87] It is also necessary for HR and management to be reasonably well-

informed about some of the most destructive personalities which are known to correlate with workplace bullying and its consequences. Dealing with some of these personalities requires insight, training, political skill and courage. All of these attributes and competencies can be learned and developed.16

Personality, motivations and pathways to bullying [5.11] It is helpful to understand the motivations which drive different personalities to bullying behaviour, some of which are discussed in Chapter 4. Personal attributes and motivations interact with contexts and organisational factors, particularly if there is no coherent structure, poorly developed policies and no clear message about values and expectations in the organisation. This chapter focuses on those personalities in the Dark Triad who are known to bully others, the common core being callous and manipulative behaviour but the motivation in each type of personality is different.

Machiavellian personalities [5.12] High machiavellian personalities are those who score high on assessments of machiavellian attitudes and tactics. When they bully, it is usually manipulative and covert with particular self-interested goals such as money and status in mind. The lack of firm policies about behaviours provides the unstructured conditions that machiavellian personalities prefer, as they have more freedom to pursue their personal goals rather than the organisation’s goals. Although they may not overtly bully others in public view, they will not be helpful or reciprocal in teams and only appear to fit in with the group norms superficially and pragmatically. They are more likely to

resort to covert bullying tactics when their self-interest is threatened, especially if it is a monetary threat. The case of Bernard Madoff is the prime example of a machiavellian personality who seduced and covertly exploited his clients for his own gain. He was overtly charming and likeable but relentlessly pursued self-interest at others’ expense. The following excerpt is from Politico in 2009: While he said he is of course sorry for what he did, his talking points were clear: that his crimes have been exaggerated and his efforts to recover money for his victims have gone unacknowledged. … He said he has not changed. ‘There’s nothing for me to change from. It’s not like I ever considered myself a bad person. I made a horrible mistake and I’m sorry’.17

[page 88] Such comments are no solace to his victims. ‘He never tells the truth,’ 70-year-old Miriam Siegman, who lost her life’s savings in the Madoff scheme, said in an interview. ‘He manipulates it to exonerate himself in some way. He’s a master manipulator’.

According to The Telegraph (UK) newspaper, in transcripts from a High Court trial, a witness stated under cross-examination: … I’ve seen him [Madoff] being a hell of a bully, a terrible bully, and tear a broker’s throat out who worked for us. I personally would stay well clear of Bernie as best I can. … Traders have described him as by turns ruthless, manipulative, controlling, bullying, paranoid and secretive. The former head of trading, recalled: ‘He had, from my perspective, a way of controlling you that was so subtle, it turns out that you didn’t actually realise that you were being controlled.’ … Madoff’s ruthless side erupted after the 9/11 terrorist attacks when he ‘absolutely exploded’ when the New York Stock Exchange was closed for more than a week, according to a witness. ‘I couldn’t even repeat the few conversations I had with him at that stage’ he said.18

While these interviews and court witness accounts are taken from online newspaper reports and not from the original court transcripts, they do reveal covert, machiavellian tactics and the prime motivation of money. Madoff’s bullying and aggressiveness apparently only emerged when his monetary selfinterest was threatened.

Narcissistic personalities [5.13] People who are narcissistic, grandiose, entitled and prone to anger will behave aggressively when there are perceived threats to self-esteem. Although they often start well, as time goes on they move towards increased aggression, impulsivity and risk-taking, especially when they perceive a threat to their feeling of superiority. Constraints are less likely to be effective as they move to more extreme positions of grandiosity and entitlement. Constraints are also less effective with narcissistic personalities when they assume more powerful positions. The scenario below illustrates a bullying personality, a small-time actor who was narcissistic, grandiose and entitled. His bullying behaviour became more intense when he was frustrated that he was not valued above an outsider. Narcissistic personalities with strong envy of others whom they see as a threat, will morally disengage from their normal values and [page 89] ‘do whatever it takes’ to re-establish their self-esteem.19 The most common way to do this is to bully and undermine the person whom they see as a threat. The following case example demonstrates a person’s motivations and tactics as he works to destroy his rival. Again, there is no self-awareness, possibly an unrealistic estimation of his abilities and callous, manipulative behaviour similar to that of the subclinical psychopath.

Case example: The actor A professional actor was ranked ninth in auditions for a prime role that he was convinced he would win. He had been with a small theatre company for some years and apparently had a normal, solid work record but was not regarded as exceptional. He tended to bully other actors with belittling and aggressive remarks, taking the moral high ground and telling them what to do. He broke rules and boundaries, intruded on other people’s personal space and assumed authority that he did not have. In general, he was known to be disagreeable to most people. When the role was awarded to an outsider, he took it as an insult and felt that the role was rightly his. He began a systematic, planned attack of undermining, spreading false rumours and interfering with the target’s performance whenever possible. He finally influenced a key person to believe his stories. Eventually, the outsider resigned, as he had no power base or influence, and the leader did not hold the bully to account. This scenario is common, particularly when a leader is under other pressures and the organisation is poorly structured. In a small theatre company, it is unlikely that anti-bullying policies would be developed and implemented. The leader was not firm enough to communicate company values and expectations. The narcissistic personality can be convincing and will genuinely see themselves as the victim when they do not get what they want.

Subclinical psychopathic personalities [5.14] Within the Dark Triad, subclinical psychopaths in the workplace do not need provocations as they pursue inner sadistic impulses and are motivated to indulge in serial predatory bullying. The main motivations are dominance and control that are achieved through isolation and destabilisation of the target, until they are annihilated by stress and unable to perform. There are perpetrators who will escalate no matter what the context and attempts to constrain them do not usually work. They do not fear risk and do not respond to punishment. Playing the victim and threatening litigation are common tactics used by subclinical psychopaths when they are held to account. If their dominance and control are threatened they will often intensify the bullying tactics, even if these become self-defeating. [page 90]

These personalities consider themselves to be beyond the law and will not comply with the organisation’s policies and constraints. This type of personality is attracted to poorly structured organisations where the leadership can be manipulated. Unfortunately, ‘successful psychopathy’ is known in psychiatry to be a retrospective diagnosis, which means you do not realise what you are dealing with until it is too late. Case example: The manager A manager in an international company used a range of overt and covert bullying tactics to control his direct report who was female, attractive and competent. The situation was complex, as he did not appear to know his field of expertise and had to rely on his direct report. He regularly took the credit for her work and demeaned and criticised her behind closed doors. He flouted normal work responsibilities and often disappeared from work with no explanation. He tried to isolate her by preventing her from talking directly to other sections involved in her work. He would listen in to conversations and finally, some people refused to speak openly in the building, as they felt uncomfortable with the unnecessary surveillance. The direct report became more skilled at circumventing the manager’s attempts to dominate. His intrusive control intensified as he became more impulsive and took illconsidered and unwise risks that were visible to others. He finally went too far and sexually harassed and abused her when witnesses were present. His impulsivity exposed him and his behaviour was reported to upper management. When the top leadership confronted him with his behaviours and asked for his resignation, he threatened them with legal action. The threat of litigation is a common tactic used by subclinical psychopathic personalities when they are held to account. In this case, the leadership backed down and dropped the action but moved the targeted person out of the line of fire. The main motivations, in this case, are dominance and control as well as some sadistic delight in demeaning his direct report. As is common in psychopathy, he became more suspicious and paranoid with impulsive risk-taking when his bullying attempts to isolate the target were not working. He successfully intimidated top management who believed his threat that he would pursue the company in court. In most instances, this type of bully will bluff and take the case up to the court steps before withdrawing.

Everyday sadism [5.15] Sadism is often expressed in relentless jokes, teasing, bantering and pranks. Such ordinary every day sadism and cruelty are not normally considered to be a part of the Dark Triad. It has only very recently been addressed and acknowledged in research as having a deleterious impact on

others.20 In some ways, teasing, bantering and pranks have probably been an accepted part of Australian culture, although when relentless and oblivious to the damage incurred, it is beyond any accepted norm. [page 91] The implementation of a strong Psychosocial Safety Climate together with a rewards/constraint system and known consequences reduces bullying. It is not yet known whether this kind of everyday sadistic bullying responds to implementation of policies.

Mobbing [5.16] The motivation behind mobbing often develops to protect a group’s work norms although there is usually a ring-leader in the group. Mobbing can be a form of social contagion, whereby people mimic expressions and behaviours of another who appears to be more powerful or influential.21 From the bullying by one or two people, a new group norm can emerge, which consolidates the group and allows for considerable informal power. The development of new work group norms often emerges when there is change, particularly if the change is fast-paced or creates temporary chaos. The group can mobilise resistance against the initiative of either an individual or the organisation. This was evidenced in the case of Renee in Chapter 3 at 3.21. If there are gaps in the structure, the PSC or weakness in the leadership, a bullying norm can escalate rapidly. Once a mob forms and cultivates toxic norms it is extremely difficult to change or modify.

Consequences of bullying [5.17]

The consequences of bullying have been clear in the preceding

examples although it is worth stating them again, that bullying is a major workplace stressor that has far-reaching impact on individuals, observers, culture, performance and outcomes.

Consequences for the individual [5.18] Stress, especially prolonged duress instigated by bullying over an extended period, breaks down the individual’s cognitive functioning as well as their physical and emotional integrity. Stress interferes with attention and focus, memory and the ability to plan and organise. When this impacts on the individual’s inability to perform at their normal levels, it increases their fear of being too damaged to work and make a living. It damages their sense of self-worth and identity as a person who is able to support themselves, contribute to family and society, achieve competence and be respected and valued by others. Depression and anxiety are the most common diagnoses related to bullying, although traumatic stress is the most severe reaction. The symptoms of post-traumatic stress include sleeplessness, nightmares, numbed feelings, panic, re-experiencing the trauma, vivid memories of traumatic events and avoidance of anything which reminds the person of the bullying, especially the workplace. [page 92] When bullying is prolonged, repetitive and persistent, it leads to emotional exhaustion and burnout with a loss of interest in work and relationships. In complex trauma, all systems fail with loss of emotional regulation, reduced cognitive functioning and somatic symptoms. For some, life loses its meaning and people self-harm and contemplate suicide. There have been a number of suicides as a result of workplace bullying.

Consequences for the culture [5.19] Doing nothing to stop bullying behaviour when it first comes to light amounts to tolerating it or even enabling the bullying. If nothing is done to stop the bullying at this stage, the behaviours can infiltrate throughout the work group, change work norms and standards and intimidate or exclude anyone who does not comply with the new norms. As people become more afraid of the bully they often retreat, ignore the attacks and avoid the target for fear of attracting a similar attack. Others join in and the bullying becomes mobbing. Leymann22 and Shallcross23 outline defined phases in mobbing, which may start with a small event but then escalates as the group joins in on the attack and leaders fail to act. if the case is escalated to higher organisational levels, the target is often seen as the problem while leaders at the local level and the majority groups are believed. The inevitable next stage is the expulsion of the targeted person. Once a culture becomes this toxic it is extremely difficult to change. If the group gets rid of one target, the sadistic impulse in the group seems to search for another target. Other bullies come in to replace the ring-leaders who have left and the group continues with the same destructive behaviours. In some cultures there has been no alternative but to disband the group altogether and start again.

Consequences for the organisation [5.20] If bullying is allowed to continue or if the workplace becomes toxic, there are many consequences for the organisation, that include the following: lowered performance and work-group standards; increases in staff turnover; increased absenteeism, presenteeism and sick leave; fall in productivity;

financial implications arise as: insurance premiums rise; litigation looms; [page 93]

the organisation’s reputation is damaged; talented people refuse to work in a reputedly toxic environment; damage to the organisation’s reputation; loss of potential talent.

Summary [5.21] When considering any bullying case it is important to recognise the potential complexity of factors which have contributed to the bullying behaviours. This chapter has outlined the part played by external socioeconomic factors and internal work characteristics, which create stress or enable bullying. The emphasis in this chapter has been on the interaction of all external and internal factors, including personality and motivations of individuals who bully in a repetitive, even serial, way over time. When external circumstances and workplace characteristics combine to provide an environment, which is pressured and has gaps in structure and processes, especially a low PSC, it is vulnerable to personalities who use bullying behaviours to further their agendas. If no firm action is taken early in the piece, bullying can become a group norm which is extremely difficult to change.

_______________ 1

M Harvey, D Treadway and J Heames, ‘The Occurrence of Bullying in Global Organisations: A Model and Issues Associated With Social/Emotional Contagion’ (2007) 37(11) Journal of Applied Psychology 2576 at 2599.

2

Harvey, Treadway and Heames, pp 2579–2580

3

M Dollard, T Bailey and M Webber, ‘The economic burden and legal framework of work stress in Australia’ Ch 1, p 11 in M Dollard and T Bailey (eds), Australian Workplace Barometer: Psychosocial Safety Climate and Working Conditions in Australia, Australian Academic Press, 2014.

4

R Hodson, V Roscigno and S Lopez, ‘Chaos and the Abuse of Power: Workplace Bullying in Organisational and International Context’ (2006) 33(4) Work and Occupations 382.

5

V Rosigno and R Hodson, ‘The Organisational and Social Foundations of Worker Resistance’ (2004) 69(1) American Sociological Review 14.

6

Hodson, Roscigno and Lopez, above fn4, at 387.

7

Hodson, Roscigno and Lopez, above fn4, at 388.

8

H J Levitt, Why Hierarchies Thrive, Harvard Business School Publishing Corporation, 2003, p 4.

9

M Dollard and A Bakker, ‘Psychosocial Safety Climate as a precursor to conducive work environments, psychological health problems and employee engagement’ (2010) 83(3) Journal of Occupational and Organisational Psychology579.

10

T Bailey and M Dollard, ‘Psychosocial Safety Climate (PSC) and implications for Australian Industries’ch 6, pp 89–90 in The Australian Workplace Barometer, above fn 2.

11

A Bakker and E Demerouti, ‘The Job Demands–Resources Model: State of the Art’ (2007) 22 Journal of Managerial Psychology 309.

12

Hodson, Roscigno and Lopez, above fn 4, p388.

13

C Balducci, F Fraccaroli and W B Schaufeli. ‘Workplace Bullying and its Relation with Work Characteristics, Personality, and Post-traumatic Stress Symptoms: an Integrated Model’ (2011) 24(5) Anxiety, Stress & Coping 499 at 513.

14

T Bailey, M Dollard and M Tuckey, ‘Prevalence, antecedents and implications of workplace bullying and harassment in Australia’ ch 9, p 149 in The Australian Workplace Barometer, above fn 2.

15

Australian Workplace Barometer, above fn 20, ch 6, p 95

16

Kilmann Diagnostics at .

17

M J Lee, ‘Bernie Madoff speaks: Politics, remorse and Wall Street’, 20 March 2014, at .

18

H Dennys, ‘Bernie Madoff: the inside story of an obsessive control freak who fooled the world’, 10 August 2013, at .

19

M Duffy, K Scott, J Shaw, B Tepper, K Aquino, ‘A Social Context Model of Envy and Social

Undermining’ (2012) 55(3) Academy of Management Journal 643. 20

E Buckels, D Jones, and D Paulhus, ‘Behavioural Confirmation of Everyday Sadism’ (2013) 24(11) Psychological Science 2201.

21

Harvey, Treadway and Heames, above fn 1, p 2576.

22

H Leymann ‘The Content and Development of Mobbing at Work’ (1996) 5(2) European Journal of Work and Organisational Psychology 165.

23

L Shallcross ‘Severe Workplace Conflict: The Experience of Mobbing’ (2013) 6(3) Negotiation and Conflict Management Research 191.

[page 95]

Chapter 6 Managing Bullying INTRODUCTION [6.1] This chapter is intended to address best practice procedures at the workplace level in dealing with a bullying complaint. For a detailed discussion of the role of the Fair Work Commission in dealing with bullying disputes, see Chapter 8.

Receiving a complaint [6.2] Usually, bullying behaviour will only be brought to the attention of an employer once an employee has made a complaint to a manager. Once a bullying complaint has been received, it must be taken seriously, even if a manager has formed the preliminary view that there is no bullying behaviour. Certainly, a bullying complaint should never be ignored. It is not uncommon for an employee to report bullying but to request that the matter be taken no further. Such a situation can pose significant issues for an employer. A person who receives a bullying complaint will often be subject to obligations pursuant to the relevant work health and safety legislation to provide a safe place for work. Additionally, there are duty of care issues and, depending on the substance of the complaint, it could be the trigger for a discrimination complaint. These liabilities are not obviated simply because the complainant has requested that no further action be taken. In any event, should the employee request that the matter be taken no

further, this should be confirmed in writing by the employee. Depending on the nature of the complaint, an employer may be compelled to advise the employee that the issue cannot be ignored despite his or her express wishes due to the employer’s obligations. Of course, this process must be undertaken on a case-by-case basis. There will be situations in which a worker’s complaint does not require any further investigation. However, it must be kept in mind that the decision not to investigate a complaint is a serious one that must be treated with the utmost caution.

Commencing an investigation: preliminary issues Internal or external? [6.3] Once the decision has been made to investigate a bullying complaint, a number of issues must be considered; there a number of factors involved in conducting a best practice investigation. The first issue to consider is [page 96] whether the investigation should be conducted internally or whether an external investigator should be engaged. In making this decision, a lot will depend on the size and nature of the organisation, as well as the person (or persons) against whom the complaint is made. For example, if the complaint is made against the chief executive officer, it would be entirely inappropriate for the investigation to be conducted internally as the staff conducting the investigation would feel compromised if they ultimately reported to the CEO. In such matters, the matter should be referred to the board which would ordinarily appoint

external investigators. Similarly, in the case of senior executives or executives who sit higher than the people conducting an internal investigation, significant issues arise. In these cases, an internal investigation would generally be unwise.

The purpose of an investigation [6.4] It is important at the outset of an investigation to be clear about its purpose. Regardless of whether the investigation is being conducted internally or externally (although in our experience this issue arises more commonly in relation to internal investigations), those conducting the investigation must understand that their role is to investigate the facts. They are not, at this point, making recommendations. There must be a clear line between fact-finding and action following the investigation. It is not uncommon for investigators to misconstrue their role and this can lead to significant issues down the track. An investigation can result in a number of different findings: the allegations are proven; the allegations are not proven; or it is not possible to make a determination either way. In the case that it is not possible to make a determination either way, it cannot be said that the complaint has no merit. It simply means that the investigator was unable to form a view. Quite often an allegation will refer to events that were not witnessed as they involved only the complainant and the alleged bully. In these situations, it is not uncommon for there to be no independent evidence that leads to a conclusion that the event actually occurred. It is important that if the investigators reach this conclusion that this is relayed to the complainant. The complainant should be informed that there is nothing preventing them from taking the complaint outside of the organisation if they are dissatisfied with this outcome. It is important to

clarify that this is not a finding that they are not otherwise telling the truth, but simply that the material does not lead to a positive conclusion.

Conducting an investigation Confidentiality [6.5] It is imperative that the investigation be conducted in confidence, however, this confidentiality must be understood in light of the practical [page 97] demands of conducting an investigation. The complainant must understand that if, for example, the complaint relates to an individual, then the allegations will need to be put to that individual in order to ascertain that individual’s side of the story. Confidentiality is primarily concerned with preventing an unnecessary chain of gossip within the organisation, as well as preventing prejudice to the investigation. In order to protect the integrity of the process, confidentiality must be maintained to the fullest extent possible.

Speed [6.6] The speed with which the investigation is carried out is a very important factor in the conduct of an investigation. Investigations that drag out unnecessarily are often problematic and can increase psychological damage or organisational damage. That said, however, speed must not be considered an overriding priority. Investigations that are conducted hastily can be equally problematic, and it is often said in relation to investigations that speed kills.

The following case example looks at the difficulties associated with a protracted investigation process. Case example One employee makes a bullying complaint against another employee; there are no witnesses. It is a serious complaint involving two senior executives. How long should that investigation take? A couple of days, a couple of weeks, a month? Surprisingly, it took three months for one organisation to conduct its internal investigation. It is hard to imagine how such a narrow investigation took three months, particularly in circumstances where all parties remained in the workplace. The investigation was conducted by HR, who felt compromised by the fact that they were investigating senior executives. At the end of three months, the investigation concluded with no findings made whatsoever. The matter was brought to the attention of the CEO through a complaint made to the board by one of the senior executives about the process itself. This led to the board instructing the CEO to initiate an external investigation. The external investigators had completed their investigation within 48 hours. The investigators concluded that what had occurred was not bullying as defined, but was just a heated exchange between a couple of executives. The problem for the organisation became the damage that had been caused by the investigation to both the complainant and the person complained of. The complainant, having been told that the matter was now being viewed as no more than a heated exchange, was put into a position of extreme difficulty in terms of how they saw themselves continuing with the organisation. Ultimately, the complainant told the CEO that they had been so damaged by the company’s processes that they were unable to continue to work in the organisation. A generous exit strategy was subsequently negotiated. [page 98] The person complained of claimed that significant damage had been caused in relation to their relationship with the board. Significant amounts of repair work were required in order to rectify relationships. In the end, an education strategy was implemented as well as policies introduced to deal with allegations of bullying within the organisation.

Accuracy [6.7] When considering the issues of speed in relation to investigations, it is necessary to also consider issues of accuracy. It is important for investigators to keep in mind that they are dealing with a civil onus of proof,

not a criminal one. Investigators should make their conclusions on the balance of probabilities, not beyond reasonable doubt. If the matter does go to external investigators, the brief needs to be very clear. It is important to remember that, depending on whether legal professional privilege will apply, the brief may itself be the subject of review at a later stage. Case example In one matter, the external investigator prepared a multi-volume report. Given that the allegations were not of systemic or even extensive bullying, such an approach is difficult to understand. The investigator chose to make a broad range of comments in relation to the culture of the organisation, unrelated to the specific complaint at hand. In the same report, the investigator made recommendations as to the appropriate remedies. This put the CEO, the recipient of the report, in a very difficult position. The CEO was no longer in the position of being able to review the facts and form an opinion, as disagreeing with the investigator’s recommendations would have been problematic in itself.

Taking evidence [6.8] A real problem that often arises in investigations is that those conducting the investigation move away from what has been reported as being heard or said, to what the investigators think was heard or said. It is nearly always the case that the best evidence comes straight from the source. Particularly with respect to the complainant, they should provide a written account of their version of events and, in their own words written by their own hand, identify what they heard, said or saw. This also applies to each of the witnesses (if any). There must be no editorialising. It is not uncommon for editorialising to change the tone and meaning of otherwise innocent behaviour, resulting in bullying behaviour being found without a proper basis. If a witness’ evidence, or the complainant’s evidence, has been misapprehended by the investigator, or misreported to the alleged bully, often the discrepancy will only be brought to light in a public hearing of

[page 99] the matter. On occasion, we have seen lawyers or other advisers making significant amendments to the first-hand evidence of a witness. This is obviously problematic, and it must be kept in mind that if the matter is eventually litigated, there is a reasonable chance that the altered statement will conflict with other contemporaneous evidence such as a diary note. If it is revealed in cross-examination that the contents of the statement were altered during the course of the investigation, then this will dramatically injure the integrity of the investigation.

Avoiding bias [6.9] All other things being equal, bias is more likely to be avoided in an external investigation, particularly if the investigator is simply given a clear brief and then left at large to their own devices. Internal investigations are much more susceptible to issues of bias. Internal investigators can often place too much emphasis on an employee’s standing and reputation within the company, their record or their work performance. Such factors, however, bear little relevance to whether or not an employee has engaged in bullying conduct. Indeed, it is not uncommon for employees, who are otherwise perceived as high performers, to be found to have engaged in bullying behaviour. Often, such individuals can be adept at managing up but poor at managing down. It is important to avoid a situation whereby those conducting the investigation form views that a junior employee, who is complaining about a valued and trusted manager, could not possibly be telling the truth and must simply have a grudge against their manager. Unfortunately, in our experience we have come across such situations. In one such matter, the recipient of the report was concerned about the internal investigation and outsourced it to an external investigator to conduct a fresh investigation. The external

investigator comprehensively demonstrated that the bullying allegations could be substantiated on the evidence, and that there was no justification for finding that the conduct had not been proven.

Emails, text messages and social media [6.10] An astounding amount of evidentiary material is found in emails, text messages and social media communications. These technologies can play a central role in bullying behaviour. It is important to keep in mind when considering this material that, at the end of the day, they must be considered objectively. It is not enough for the person who sent the email, text message or social media communication to say ‘I didn’t mean to say that’. Nor is it enough that the person who received the communication feels victimised. The communication must be considered on its own terms. It is, however, also important to consider context. It is not uncommon to find a pattern of bullying that will only emerge once all communication between the parties has been considered. For example, an email chain might reveal a series of demands that when considered individually are unremarkable, but when considered as a package create unreasonable work expectations. [page 100] Accessing employees’ emails can be an effective step to take early in an investigation, as it can assist the investigator in understanding relationships and narrowing or clarifying issues. Unlike pen and paper, emails seem to have taken on a life of their own. People tend to be quick to send electronic communications without too much thought, and in many cases these communications will include inappropriate material. Bullies are often fairly unrepentant about what they will put in writing, and will attempt to laugh it off. It is not uncommon for bullies to accept that they have sent certain

material, but to insist that it is open to interpretation and that they did not intend for their behaviour to be bullying. The process by which emails and other communications are accessed will depend on the systems that have been established by the employer. If the employer has made it clear that emails are the property of the employer and that they may be accessed, then the employer will be within its rights to access its employees’ emails. Often, it will be possible to access even emails that have been deleted by the user. Bullying behaviour, in relation to personal communications through texts and social media, can cause further complications for the employer as they may have a limited ability to regulate conduct and access material that falls into the personal sphere. For example, text messages or social media communications sent between employees’ private devices outside work hours, may not fall into the employer’s traditional purview of regulation. On the other hand, an employer-provided laptop may cause exposure for an employee, depending on how that laptop is used outside of the workplace. Regardless, employers still have an obligation to ensure the workplace health and safety of employees, notwithstanding the context or medium by which specific acts of bullying occur. Increasingly, employers are introducing internal policies, to address workplace conduct in relation to electronic communication and social media, as an effective means of addressing this issue. The efficacy of these policies may be limited by issues of privacy in some circumstances and it remains an emerging area of law.

Workers’ compensation, stress, sick leave and bullying [6.11] It is important to consider bullying in its broader context and how it relates to other concepts such as workers’ compensation, stress and sick leave. Distinguishing these concepts from each other can be a difficult exercise.

Certainly, there is a degree of overlap between them. It is important, however, to understand the differences between them as well as how they relate to each other.

Commencing sick leave after making a bullying allegation [6.12] It is not uncommon for a person who alleges bullying to immediately go on sick leave, whether or not they are covered by workers’ compensation. This can frustrate an employer’s attempt to commence investigating the [page 101] matter. However, the employee must be made to understand that it is not as simple as throwing a hand grenade and then refusing to participate in the investigation process while on sick leave. It is important to carefully consider how to approach an employee in this position. In many cases, an internal investigator contacting the worker will be problematic. A safer avenue is for the employer to inform the employee that it understands that the employee is sick and stressed, but that an important allegation has been raised and needs to be investigated. Informing the employee that an external investigator has been appointed and that the external investigator will contact the employee to organise a convenient time to discuss the matter, at the employee’s home if preferred, will assist in ensuring that the employee’s well-being is maintained throughout the investigation process. The employer should seriously consider how it can best maintain the employee’s well-being throughout the process.

Bullying and medical evidence

[6.13] In determining whether or not bullying has occurred, some organisations have taken the approach that a medical certificate, or some other evidence of psychological damage, is necessary in order to establish bullying behaviour. This is absolutely not the case. Different people will react to bullying in different ways and people have different levels of resilience. Some individuals who experience bullying will not feel as though they need to obtain a medical certificate and will choose instead to attempt to bat on. Others will blame themselves and will only seek outside help once they reach breaking point. In any case, whether or not there is medical evidence of the harm caused by bullying behaviour is not relevant in determining whether or not that behaviour occurred.

Bullying and workers’ compensation [6.14] Whether or not a person has been denied workers’ compensation is also not a relevant factor when determining whether nor not the conduct being investigated is bullying. Some employers have unsuccessfully argued before courts and tribunals that certain conduct could not be bullying because there was a workers’ compensation investigation and the workers’ compensation insurer, for whatever reason, denied the claim. Workers’ compensation insurers are not in a position to determine matters of industrial law, or whether or not certain conduct is properly considered bullying. Regardless of the insurer’s conclusion, the conduct can still be found to be bullying.

Handling stress leave [6.15] The phrase ‘work-related stress’ has become pervasive in modern life. There is a perception, and it is not entirely without merit, that some people, who ask to take stress leave, are not really stressed but are of the view that obtaining a medical certificate in support of their claim would

[page 102] not be difficult and are prepared to take advantage of this situation. It can be critical in bullying-related matters to attempt to have the medical practitioner provide more detail than simply declaring that Jim Smith is unfit for work, or that Jim Smith is unfit for work due to work-related stress. Ideally, the medical practitioner will probe further and find out what the cause of the stress is and communicate this to the employer. Failing this, the employer should have systems in place that ensure that if an employee does take extended sick leave, that the employee can be examined by a practitioner of the employer’s choosing. This process can result in the employer undertaking an investigation on the basis of the practitioner’s report. In tandem with any extended sick leave taken, a return to work program, developed in consultation with the affected employee, will usually be necessary to ensure the employee’s return to work proceeds smoothly.

Proactively eliminating bullying [6.16] It is far better to be confronted with, and attempt to prevent, bullying behaviour at its infant stage rather than reading or hearing about it when it is all too late. Proactive steps can be taken that do assist in eliminating bullying in an organisation and avoiding litigation. In our own experience, there are two critical steps that will assist in changing the culture within an organisation: Commitment by the CEO, often repeated, that bullying is not tolerated; and Demonstration of that commitment through the provision of regular training programs that go beyond ‘box-ticking’ or unengaging online programs. Running such workshops is an inevitably expensive undertaking, but the best programs that we have been involved in have been run with the

full support of the organisation’s executive leadership. It has been an effective technique to have the CEO attend the beginning of such workshops and tell the employees that they should report any bullying of which they become aware or are the target. In our experience, the above steps have resulted in an effective cultural shift in the organisation, and the actions of various bullies have been brought to light. In practice, this cultural change has resulted in a number of ostensibly high-performing individuals losing their jobs. However, this has effectively conveyed a message to the workforce that bullying will not be tolerated, nor will it remain buried beneath the surface at the expense of the health and well-being of the bullies’ targets.

[page 103]

Chapter 7 Intervention and Prevention Introduction [7.1] Managing the risk of psychological injury requires a strategic decision to invest in the corporate culture with the ultimate aim of maintaining employee engagement, reducing staff turnover and preserving the reputation of the organisation as an employer of choice. Bullying is increasingly recognised as a threat to business that now approaches epidemic proportions globally. Its impact is far-reaching and extends from each individual to the work group, the organisation, families and society. Although research is rapidly progressing, strategies to address organisational climate and the antecedents of bullying at group and organisational levels remain limited. Neale and Tuckey1 maintain that precisely how antecedents combine to contribute to bullying is not yet known, nor are the different pathways to prevention yet understood. There are also calls for more understanding of the mechanisms of bullying so that more effective strategies can be developed for its prevention.2 In previous chapters this book has attempted to explain why bullying leads to severe psychological injury. (See Chapter 3 at 3.10 and following). In Chapter 5 there is a further attempt to explore how personalities, motivations, cultural norms, policies and workplace characteristics combine to tolerate or enable bullying. Although recognition of the complexity of the bullying is emerging, it will take time to integrate existing research, translate the findings into practice and eventually find more skilled approaches and precise pathways to resolution.

In each case of bullying, an organisation must design a response according to its socioeconomic context, workplace pressures and levels of stress, size and complexity of the organisation, type of organisation and its work characteristics.

Example of an organisation’s response to unethical behaviour [7.2] In 2004, the NAB rogue trader scandal included severe bullying and threatening behaviours. The whistle blower told the court that ‘they [page 104] just created this power base where they were laws unto themselves’ and ‘the court heard that Luke Duffy, the head trader, kept a blacklist of traders who crossed him and any who questioned his authority were ridiculed’.3 The wellknown outcome of this case was financial and reputational loss for the company. The CEO’s statement in the NAB Concise Annual Report 2004 took the first step towards prevention: While the National had an agreed set of values, people were not held accountable and values were not reflected in the way people were assessed. Culture change programs were voluntary and there was a lack of visible and consistent leadership in this area. This led to a focus on achieving shortterm profits without regard to the way in which this was done, and low levels of employee engagement.4

This simple and concise statement demonstrates some key issues necessary to any preventive strategy: leadership support for change; transparency and openness; acknowledgement of cultural and structural gaps and inconsistencies;

description of poor adherence to values; acknowledgement of leadership failures; description of the type of organisation and its goals. The lack of coherence5 in the company, described by the CEO, ultimately had allowed a bullying personality to enter the company, rise in status and exert enough influence to change the group’s norms. The climate in NAB, at that time, was one in which the stated values and policies underpinning the psychosocial safety climate (PSC) were not implemented. This case supports The Australian Workplace Barometer finding that, although Australian companies have high levels of policies and procedures, there is also a high level of bullying, indicating lack of policy implementation.6 The NAB implemented change strategies that acknowledged how behaviours, performance and outcomes were inextricably intertwined. The NAB Concise Annual Report 2005 showed the clarity of expectations, accountability and specificity of consequences that are essential for every preventive strategy. The following statement, in 2005, conveyed a strong message that vague statements of principle and intent were no longer enough: A set of clearly defined Corporate Principles has been developed for all employees. These principles, based on respect and integrity, are embedded

[page 105] in the way we do business, through business unit objectives, strategies and the bonus remuneration scheme.7 (emphasis added)

This chapter discusses both reactive and preventive interventions and provides information about available resources for a detailed treatment of prevention. It begins with remedial action following a bullying complaint where there is a psychological injury.

Reactive interventions with individuals following a complaint Intervention for the target [7.3] Safety and health of individuals must take precedence when a complaint is made whether it is formal or informal. Facilitating the recovery of individuals with the offer of support and counselling aims to restore safety and stabilise the individuals. If bullying has been caught in time and policies have been implemented, it may be possible to mediate and resolve the problem. When the bullying behaviours persist and the employer does nothing to stop the behaviours, the targeted person has no recourse and should leave before they are injured. This is not always possible if jobs are scarce, their field of expertise has limited opportunities or the person is trapped in their position by financial obligations or other factors. Being trapped in an abusive environment with prolonged bullying over time leads to psychological injury. If symptoms are severe enough for an employee to be unable to work, the treating counsellor should be experienced at working with trauma caused by interpersonal aggression or bullying. The employer and insurance companies must accept that counselling will be long-term if the psychological injury is severe and the bullying has been prolonged, especially if there was no intervention to stop it. Removing persons at risk from abuse or threat, with the consent of the individual, is an essential part of recovery from psychological injury. It is clear in Chapter 5, at 5.19, that when a complaint is made and then escalated to higher managerial levels, particularly in large organisations, there is the risk of further injury when the claim is denied and the employee is labelled ‘mentally ill’. This type of labelling is sometimes used as a means of getting rid of the problem by denying the link between workplace bullying

and the target’s injury, then manoeuvring the employee towards expulsion. This is usually achieved by using experts in psychology and psychiatry to diagnose the person’s symptoms in terms of a long-standing psychological disorder, or a personal problem, rather than a psychological injury sustained from workplace bullying. The diagnosis of mental illness has significant ramifications for the targeted person, as loss of career, financial security and future employment are risked. This situation increases the employee’s anxiety and compounds their psychological injury. [page 106] The situation can be complicated by diagnostic confusion, as the symptoms of an injury from prolonged interpersonal aggression or bullying can be very similar to the symptoms of long-standing personality disorders. This makes it easier for an employee or insurance company to deny liability and take the position that the psychological symptoms pre-dated the bullying. If the bullied person has been stable with no history of a psychological disorder, it indicates that the psychological injury was caused by workplace bullying. Too often, the person continues to be bullied by a system of employers and insurance companies. When the bullied person’s previous functioning has been stable, the provision of a psychologically safe environment that allows sufficient time and support for recovery will usually produce significant improvement. Careful assessment and monitoring of the new environment by the employer, and agencies involved, is necessary to ensure that no further bullying occurs. Traumatic stress caused by bullying, when handled well, can encourage the growth of new skills to manage anxiety and block the attempts by aggressive personalities to bully them in the future.

Intervention for the person who bullies

[7.4] Counselling of alleged bullies is also important if they are destabilised and suffering emotionally from the allegations, some take stress leave. If a person has bullied others in response to stress, they would no doubt benefit from counselling or coaching but many deny the allegations and refuse to accept such help. On the other hand, there have been some instances when the person who admitted to their bullying behaviour, contacted the person they bullied and apologised after receiving successful counselling. Some bullying personalities prefer coaching and training or may not be receptive to intervention at all. It is suggested that a person is low in both selfawareness and their capacity to change when they reject all help with behavioural change and continue their bullying. They pose a significant risk to other employees, the culture and the organisation. Awareness of bullying and its impact has risen over the last decade and the authors note that people are now seeking help earlier. This is an improvement as recognising the bullying problem early averts severe psychological damage and helps the targeted person to make a decision for both safety and career reasons. When the organisation does not intervene to prevent bullying, the targeted person must make a decision and take action to avoid the bullying. If the bullying is serial and predatory, staff turnover will rise. Early intervention by an organisation brings positive results, as it not only prevents psychological injuries but also stops the bullying from spreading to the group and infecting the work group norms.

Prevention at the organisational level [7.5] It is the responsibility of each organisation to invest in the development of an anti-bullying prevention strategy, based on a customised [page 107]

risk management approach specific to their industry and context. Once leadership commits to prevention, the existing culture is assessed to identify the specific hazards in the organisation. Interviews and surveys are available, together with resources, explaining how to develop a risk management program for psychosocial safety. Large, complex organisations often engage a culture change specialist but smaller organisations, with fewer resources, may access the following:

Useful books on prevention of bullying Preventing and Managing Workplace Bullying and Harassment by Moira Jenkins8 [7.6] This book explains the risk management approach to bullying. It provides assessment tools to identify hazards, as well as a detailed guide to developing policies and training tools in the Australian context. It also identifies levels of intervention. Some of the survey tools are: risks in relation to organisational policies, procedures and culture (p 110); risks in relation to organisational changes and work systems (p 112); risks in relation to management styles (p 113); risks in relation to employee characteristics and the social environment (p 115); and Team Climate survey.

Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice by Stale Einarsen9 [7.7] Einarsen draws on the expertise of many global researchers and practitioners to cover all topics related to bullying. Chapter 16 on interventions and prevention covers:

levels of interventions — policy, workgroup and organisational levels; interventions for the prevention and reduction of bullying; key principles in planning and implementing interventions; systematic and stepwise implementation; and evaluation of interventions.

Occupational Health Psychology by S Leka and J Houdmont10 [7.8]

This book emphasises:

a participative approach and social dialogue; [page 108] multi-causality and identifying key factors; solutions that are fit for purpose; different levels of interventions that are multi-modal; interventions and feedback at the local level where groups identify the risks in their area and devise local solutions; and how group action plans are developed in consultation with upper management.

Assessment tools for psychosocial risk management The Health and Safety Executive UK (HSE)11 [7.9]

The HSE has developed an online risk management approach to

workplace stress, which includes bullying as a stressor as well as other contributing systemic factors.12 The guide is detailed and each step shows how to develop management standards for six main areas which can be customised to each organisation. These are: demands; control; support; relationships; role; and change. The HSE online tools include indicators of bullying and relationships:13 survey and analysis tools: Notes on the HSE Management Standards Indicator tool; HSE Indicator Tool PDF; HSE Analysis Tool [XLS 4MB]; developing a Stress Policy: example stress policy PDF; developing an action plan: action plan and worked example PDF; running focus groups: how to run focus groups PDF; steering groups PDF; management competencies: Line Manager Competency Indicator Tool; Line Managers’ Resource: a practical guide to managing and supporting people with mental health problems in the workplace PDF; and [page 109]

return to work after absence: return to work discussion question template PDF. The HSE tools may be incorporated into any organisation’s existing surveys and instructions are provided for doing so.14

Work Positive [7.10] A free survey with the Scottish Health and Safety Authority,15 in association with the HSE, is available online.

The Job Content Questionnaire (JCQ-2)16 [7.11] The JCQ-2 is a tool used internationally to collect data on psychosocial factors in the workplace. It now includes a 12 item tool developed in Australia17 to measure PSC: skill discretion; decision authority; psychological demands (5-items); supervisor support; coworker support; physical demands; and job insecurity.

ASSET18 by Robertson and Cooper [7.12] This very experienced group provides the ASSET tool which measures six factors: resources and communication; control; balanced workload;

job security and change; work relationships; and job conditions. These factors, when working well, are considered to contribute to a sense of purpose and positive emotions. Safety and well-being, in turn, contribute to the individual’s productivity, satisfaction, morale, motivation, engagement, commitment and health. The individual and their work effect organisational outcomes, including productivity, absenteeism, recruitment [page 110] and retention. If these factors are not working well, there is chaos, discontent with poor collaboration and reciprocity in teams which then affect the organisation’s productivity and outcomes.

Psychosocial Risk Management Excellence Framework PRIMA-EF19 [7.13] This collaborative project, led by the Institute of Work, Health and Organisations, University of Nottingham, ‘focused on the development of a European framework for psychosocial risk management with a special focus on work-related stress and workplace violence (including harassment, bullying and mobbing)’. The aim of the project was to develop indicators in the area of psychosocial risk management and enhance best business practice. The PRIMAeT project developed as a result of the initial PRIMA-EF project. It has created an online training package that includes information to raise awareness, as well as tools, that can be used at enterprise level to prevent and manage psychosocial risks. It also aims to provide tools and capacity for managers and employers in small and medium sized enterprises.20 Bailey21 comments that the there are no psychosocial risk assessment tools

available using Australian data and recommends that the HSE and the PRIMA-EF Best Practice Standards and organisational level psychosocial risk assessments are incorporated into WHS standards in Australia. Australian research has shown that whole-system approaches, which include both individual and organisational level interventions, are more effective.22 For more detail on Individual Assessment Tools and Development Tools see Part II, Resources.

Planning the interventions [7.14] Once the hazards have been identified, the interventions are designed to fit the case, keeping in mind that each organisation is different in its own way. The PSC HOC below provides a guide on where to start when planning interventions. The HSE resource provides a guide on how to plan the risk management approach.23 [page 111]

The psychosocial safety climate hierarchy of control [7.15] Dollard and Bailey24 have developed a tool for guiding the hazard management process once the risks have been identified by one of the assessment measures above. The highest risks are addressed first. The PSC HOC or Hierarchy of Controls for risk management is considered to be best practice and defines five levels of intervention: Level 1: Development of Organisational Policy and Procedure: These should be developed in consultation with all levels of employees. The development of policies may be found in the resources mentioned.25

Level 2: Implementation of procedures by whichever unit is responsible by those specified — HR, WHS Committee. Implementing includes promoting safety and well-being and preventing harm by incident reporting, risk assessment, injury prevention intervention and training. Level 3: Managers, supervisors, team leader action and support. Leaders play a crucial role in creating and maintaining values, role-modelling, identifying bullying and risks in a timely manner. Level 4: Job design: Demands, controls, resources, support. Steps are taken to manage the balance of demands/resources, autonomy and decisionmaking, training. Level 5: Specific characteristics of individual workers — personality, stress, resilience, coping skills are addressed with training, supports or other measures.26 Examples of training are anger management, stress control and interpersonal communications.

General considerations on organisational preventions [7.16] Leka27 points out that translating policy into practice is the major challenge but it can be achieved through the provision of tools. The difficulty with implementation may result from an inability to make links between the various contributing factors based on surveys. The following questions may be useful when devising policies and interventions.

Assessing the facts [7.17]

The following need to be assessed:

What are the exact bullying behaviours which pose a risk to health and wellbeing?

[page 112] How severe is the behaviour, how frequent it is and how long has it been going on? Is it one individual or a group of individuals carrying out the behaviours? What have been the effects on targets and other people? What are the effects on work performance and outcomes? Have client relationships been affected? This detail will help to establish whether the bullying is individual, groupbased or cultural. It may also help to find the network nodes, which promote bullying contagion or mimicking.

Finding the links and the structural and cultural gaps [7.18] Which immediate contributing factors can be adjusted to help to calm stress-related irritability and impulsivity, eg, adjustments to job demands and resources may be appropriate if there are specific job stressors contributing to aggression. Are people aware of the policies underpinning the psychosocial safety climate with its behavioural expectations and accountability? Are there any communication channels which have not been covered? Would a conversation with the parties, or mediation, be safe and appropriate in less severe circumstances or where there are minor disputes, which have not yet escalated into intense interpersonal conflict and bullying? Is the bullying derived from a complex combination of factors, including

personality and levels of power? An example may be the ‘lean and mean’ industry with long working hours, no paid overtime, aggressive deadlines imposed from the top, strong resistance to change and limited concern for psychosocial safety. Are there gaps or structural holes which would enable bullies to be promoted and bullying behaviours to become endemic? The preliminary process and interviews should help to determine whether: the case is complex with a high degree of risk to employees; there are barriers to remedial interventions; and it is beyond an in-house response and warrants an external investigation? A comprehensive risk assessment considers those organisational factors which may contribute to bullying behaviours and, if identified, will be the focus of an effective change program. These factors include: a chaotic and unpredictable work environment; reduced work control; [page 113] role conflicts and role ambiguity; work changes and pace of change; pressure of job demands and low resources; performance and time demands; interpersonal conflicts; destructive management style; low moral standards or unethical environment; and

organisational culture and counter-productive work group norms.28 Once there is information and feedback about the work characteristics that are contributing to stress and bullying, a customised plan for remediation can be developed. The combined approach of addressing both organisational factors and individual bullying behaviours, aims to increase the organisation’s coherence through transparency, accountability and enabling management to implement policies and foster individual well-being. A useful resource is a training program which helps managers to implement a behaviour change called Influencer.29 Another online resource which focuses on political skills is The Gautrey Group in the United Kingdom.30

The role of managers [7.19] HR professionals in most companies instruct and train managers on how to implement the policies and procedures preferably in collaboration with them. It is also important to evaluate the effectiveness of the management strategies and to make adjustments. HR also helps to build management capacity by helping improve the culture by strengthening the skills, competencies and abilities of its employees to manage bullying behaviours. It is important for HR to monitor manager’s confidence levels when they are implementing behavioural accountability for bullying and to ensure supports are in place for effective action. It requires courage and clarity to confront bullying, especially if there is a maladaptive work group norm or toxic culture. To address bullying there must be support from the top levels of management or it is unlikely to work. Once commitment of leaders is established, both HR and managers consider the following for development: follow the policies and avoiding using bullying tactics themselves; become more informed about personality and common pitfalls of hiring

and promoting; demonstrate leadership by tackling bullying events immediately; [page 114] detect employees who appear to be exempt from rules of conduct or are protected from above; develop skills in conflict resolution management; do not avoid accepting cases when there are complaints against managers; ensure communication of acceptable behaviour and consequences for noncompliance; ensure consistency when making decisions about bullying; monitor employee perceptions of justice and fairness in bullying. Employees will watch closely for fairness and organisational justice, which means it is essential to keep a finger on the pulse with regular formal reviews of the policy and the data collected for it. This helps to detect employee engagement, whether they take the policies seriously and there is agreement and adherence to the policies, all of which relate to an ethical climate which prevents bullying. What is being monitored here is essentially trust in the organisation with the resulting engagement and commitment.

Managing individuals: the Dark Triad [7.20] If HR and managers are to manage difficult people, it is essential to be sufficiently informed about the difficulties that might arise with repeatedly-destructive personalities who can be resistant to changing their behaviours. Talking about pathological personalities is always an ethical

dilemma and it would be easier to avoid the subject or retire in silence rather than confront the destructive impact of people who repeatedly bully. As previously stated, if a person remains naïve and trusting when dealing with a person who is abusive or undermining, the path to controlling the risk is closed. Being informed and understanding risky personalities is a part of increasing managerial capacity to manage the risk. The alternative is that people will continue to be injured and the organisation will be undermined if the personality component of risk is not recognised and managed.

Recruitment and the Dark Triad [7.21] At the recruitment stage, a very useful tool is the HEXACO31 which builds on the Five Factor model scales of emotionality, extroversion, agreeableness (versus anger), conscientiousness and openness to experience. It is thought to expand the Big Five model and may be a more effective assessment tool when screening for potential bullying and other negative behaviours. The sixth factor added in the HEXACO is honesty-humility and it has been found to correlate with deviance and counterproductive work behaviours. The honesty-humility scale includes measures of facets including: sincerity scale assesses genuineness in interpersonal relationships; [page 115] fairness scale assesses a tendency to avoid fraud and corruption; greed avoidance scale measures monetary and social status considerations; and modesty scale assesses entitlement and a sense of superiority. The HEXACO honesty-humility dimension has been consistently shown to

predict workplace deviance, counterproductive work behaviours, Machiavellianism and unethical decision making in organisations.32

Psychological contract and the Dark Triad [7.22] Although largely forgotten, the psychological contract is a very useful tool and point of reference when it comes to behavioural accountability. It has a significant effect on work-related outcomes eg, commitment, performance, loyalty and satisfaction. These outcomes vary depending on the type of contract agreed to with an employee, providing it has been addressed openly and in writing and is not simply assumed. There are different types of psychological contracts:33 transactional (short-term and economic); and relational (long-term and socio-emotional). Transactional contracts are based on an exchange of economic currency including an organisation’s provision of adequate compensation, working conditions and reasonable guarantees of short-term employment, in exchange for the employee fulfilling work obligations.34 In contrast, in relational psychological contracts, organisations may provide training, professional development and job security in exchange for employee fulfilment of less-specified role obligations. These obligations should be described in terms of relationships, values and expected behaviours and accountability. Psychological contracts, in current times, are more flexible, diverse and negotiable. The employee has more negotiating power in the contract which suggests that, if employers do not hold a firm position on the relational contract and the principles of ethics, civility and reciprocity, they should at least be very clear and careful in negotiations. Short-term contracts would be advisable and include the organisation’s behavioural expectations and policies

with explicit consequences for unacceptable interpersonal behaviours or noncompliance. [page 116] When the psychological contract is not explicitly spoken about, or even put into writing, there is room on both sides for erroneous assumptions, careless vague agreements and promises. If the psychological contract does not specify behavioural accountability at the very beginning, there will be no reference point if and when things go awry. When bullying behaviour occurs it is then possible to put it in terms of a violation of the psychological contract. The person who bullies others may be expected to complete training such as anger management, stress control or interpersonal communications. Simultaneously, the manager could indicate that there would be a record of the event put in the bully’s personnel file and ongoing monitoring of behaviours should then follow.

Managing high levels of narcissism [7.23] The many paths through which individuals with high levels of narcissism enter and advance in organisations, present a potential area of concern for HR functions at the important decision points of recruitment, selection, and advancement.35

Narcissism and recruitment [7.24] The features of narcissistic personalities are described in detail in Chapter 4.

Recruitment and management of narcissism

[7.25] Research on personnel selection has found that narcissism is seen positively in interviewer evaluations, mainly because narcissists talk a good deal in interviews and this convinces interviewers that they are competent. It appears that HR functions are susceptible to the recruitment and selection of narcissists.36 The following is recommended at the recruitment stage: Train recruiters, interviewers and assessors to recognise behaviour indicative of narcissism that is potentially problematic. Knowing the difference between normal confidence and optimism and more extreme forms of narcissism is important. Use probationary employment periods as a means of capturing any behavioural or character issues that emerge during that period. [page 117] Use objective personality instruments, such as the Narcissistic Personality Inventory, to help identify narcissists who would be problematic in teams and culture.

The psychological contract and narcissism [7.26] The psychological contract should be initiated and made explicit in the beginning with particular attention paid to ethics, organisational citizenship, interpersonal behaviours and behavioural accountability within the organisation. The underpinning is composed of the strong policies and reward/constraint system which are always a part of well-constructed PSC. This is particularly necessary if the employer decides to accept the personal risk because of other advantages the narcissistic personality provides and so employs the person.

Promotion [7.27] Narcissists are known for presenting well and seeking advancement but it is now clear that narcissism impedes organisational functioning because of its increased unethical and decreased citizenship behaviours. In particular, narcissism predicts aggression and bullying, which means that narcissism is likely to put the organisation especially at risk for bullying.37 If narcissists are potentially destructive or likely to bully, it may be worthwhile to assess the risks of this when considering advancement within the performance evaluation system. As a further control measure, given that it is difficult to assess the risk of narcissistic bullying in a lone interview, it is safer to gather perspectives on bullying behaviours from the levels of management, peers, and subordinates, as well as objective metrics to identify potentially destructive interpersonal behaviours in a leadership role.

The upside and the risk [7.28] Hogan38 states that narcissists assessed by the Hogan Development Survey may appear as knowing their industry, good at taking initiative, motivating others and achieving results but it could be that they are simply good at impression management. It may be that as stress mounts over time, narcissists may be less organised and impulsive, take risks and intimidate others. This can quickly disrupt a team if the narcissist’s entitlement, grandiose self-worth and lack of collaboration lead to poor judgment and decisions. [page 118] Campbell attempts to find a way of working with narcissism and using its talents while preventing the risk of bullying. He sees narcissism as being potentially effective during an ‘emerging zone’ when the role includes situations involving early-stage relationships and short-term contexts. He sees

the costs of narcissism emerging in the ‘enduring zone’ which involves continuing relationships and long-term consequences. He describes narcissists as ‘cyclically returning to the emerging zone’ which has more excitement and validation than a maturing system.39 Campbell suggests that, if there is a narcissistic employee who resorts to bullying when not receiving sufficient excitement or validation, it may be possible to find a role in an organisation which fits the assets of their personality. They may do well, for example, in short-term situations that require public performance. He claims that narcissists have positive outcomes in novel or chaotic situations and negative outcomes in stable, long-term contexts or if there is a threat to their self-esteem, and so they do well in the emerging phase of any project but become destructive when the project moves into the more enduring, stable phase. Case example: A narcissism scenario A specialist doctor took the initiative to fill a gap in the health service provisions for a common disorder. He successfully attracted other professionals and motivated high profile supporters to establish a significant and worthwhile organisation which assisted both health professionals and patients. His profile was positive and central to the organisation’s success and he travelled and presented internationally in that role. Over the years, as the organisation moved into stable maturity with formal processes and structures, the day-to-day activities became more constrained, repetitive and less exciting. Reports began to emerge that the founding doctor was regularly bullying staff with aggressive rages and unprovoked, constructed firing of personnel thereby risking staff turnover, absenteeism, litigation and reputation. Clearly, the early period of unrestricted freedom, undeveloped structures and low constraints had passed and the leader needed more excitement.

There are different ways of returning to the emergent zone which may be through creating novelty and innovation but also by destabilisation. Certainly aggressive rages and firing anyone who is a threat would destabilise the organisation and fight off the natural progression to the mature enduring zone of the organisation. The difficulty for HR and upper management is that there are some advantages of having a narcissist in the early phases of a project or role,

particularly if the more grandiose person projects confidence and optimism, brings energy and a preparedness to take risks. Usually, the risks are not [page 119] evident in the beginning phase, which Campbell names the Chocolate Model.40 He describes relationships with narcissistic individuals as being like eating chocolate cake. They are appealing and exciting and initially far better than relationships with non-narcissists. Over time, however, these exciting leaders or workers turn out to be slippery, unpredictable, controlling and preoccupied with self-interest. He recommends that it is preferable to pick morally decent work partners or leaders who may be less exciting but will stay the course.

Managing high machiavellians [7.29] There are two main risks when recruiting high machiavellians. The first risk is that self-interest will precede organisational interests and goals. The second risk is that high machiavellians do not reciprocate, which makes teamwork and collaboration so difficult that it leads to high levels of interpersonal conflict, known to be related to bullying.

Negotiating roles with high machiavellians [7.30] High machiavellians prefer economic opportunism to cooperation and do not generally reciprocate in response to favourable treatment by individuals or the organisation.41 If the focus of recruitment or role negotiation has been purely transactional, based on financial gain with a lack of interest in relationships and cooperation, conflict will arise when the employee’s behaviour towards others compromises the psychological safety obligations of the employer. The high machiavellian may give lip service to

obligations of behavioural accountability but will predominantly focus on money and self-interest. If high machiavellians are not prepared to collaborate and reciprocate or if they intimidate others for self-advancement, they pose a risk for psychosocial safety as well as for the productivity of the organisation. Therefore, when knowingly recruiting high machiavellian personalities, the negotiations of the psychological contract should include not only the tasks transacted but also the manner in which they are carried out. Given that the high machiavellian’s understanding of the contract will generally be transactional only, there should be some documentation of the psychological contract which ensures a clear understanding of behavioural values and expectations by the organisation. When tied to remuneration and bonus systems it may have more weight.

Promotion and advancement [7.31] Although it might be intuitively expected that intimidation of colleagues would be neither tolerated nor rewarded by superiors, past [page 120] research suggests that, paradoxically, the use of intimidation tactics in the workplace does successfully generate favourable evaluations. For example, if colleagues are coerced to give favourable evaluations which are then used to impress, supervisors may perceive that the employee is capable, efficient and dominant. Managers then recommend promotions for these employees and they are likely to advance in the organisation. It has been found that promotions are achieved by high machiavellians when there is sufficient job autonomy allowing for the intimidation of colleagues and when supervisor political skills are low. It does not work when there are constraints on behaviours and when supervisors have higher political skill.42

This suggests that constraints on autonomy may help to prevent covert bullying and supervisor training in political skills would help to prevent risky promotions. High machiavellians thrive when they have more decision-making power, fewer rules and less managerial supervision. Under these circumstances they remain cool, exploit interpersonal relationships, bend the rules and improvise. When this flexibility is constrained, machiavellians do not perform as well.43 Recruitment and promotions are therefore important decision-points for organisations considering employment of high machiavellians. The traits can be measured on objective psychometrics such as the MACH IV which is free and may be administered online.44 Extensive review of past performance and references together with employee feedback and careful assessment of performance in a current job are essential. High machiavellians may comply with training, coaching and other attempts to improve if it is in their economic interest.

Managing successful sub-clinical psychopaths Recruitment and advancement [7.32] It is critical to assess potential psychopathic profiles fully at the recruitment level and then again at any other decision points, such as promotion, if an organisation is to maintain a healthy culture. However, it is difficult to recognise psychopathy in interviews, given the high levels of successful impression management. During interviews, note, if possible, any inconsistencies, lying, manipulation, stories that lack coherence, an appetite for high risk, over-claiming achievements and low communal values. Also note any indicators of impulsivity and irritability.

[page 121] It is important to always seek evidence confirming claims and stories given that lying and manipulation are common with such personalities. Objective measures such as the HEXACO are also important tools at the recruitment stage. For further detail see 7.21. An objective measure which can be helpful is the B-Scan45 and other measures of emotional intelligence may be useful. Unfortunately, the intelligent and successful corporate psychopath will use emotional intelligence for their own advantage, more than for the benefit of other people or the organisation. Again, the psychological contract should specifically address behavioural accountability, although it may not help as any implementation of policies will lead to threats of litigation and reprisals. The employer is often too intimidated to continue with the challenge particularly if faced with the corporate psychopath’s influence network. An informal tip is that, if at the recruitment stage, an applicant seems too good to be true, take it as a warning signal. Even experienced recruiters and assessors can be convinced by their influencing skills.

The employed subclinical psychopath [7.33] The subclinical psychopath is motivated by the need for dominance and control, power and status. It is not generally possible for these personalities to change their motivations and behaviours, nor will they comply with behavioural accountabilities even when warned and enforced. A high PSC and strong culture will resist unethical and destructive behaviours and the more structured the organisation becomes, the less room there is for risk-taking, impulsivity and aggression. Most will move on when they cannot dominate but some will convince others to promote them upward. When this occurs, it only increases the risk and influences the culture towards toxicity. If

there are already successful corporate psychopaths at top levels in an organisation, their values and agendas will permeate the organisation and any attempts to challenge will probably be unsuccessful unless there is oversight with the power to act at board level. Once employed within the organisation, it is very difficult to dismiss the corporate psychopath who has no qualms about bullying other employees or damaging the organisation. If confronted they will play the victim, use skilful influence tactics and threaten litigation. When implementing behavioural accountability, it is important to act as a group and not leave the task to a lone manager or HR representative. Active support to curb the activities or to terminate employment requires demonstrated active support from all levels, particularly from the top level of management. Most often, the threats to litigate have no substance, particularly if performance has been poor. [page 122]

Summary [7.34] While specific interventions may be standard after a complaint has been made and psychological injury sustained, prevention of bullying must be a planned, multi-level program for the development and maintenance of a healthy culture which resists bullying and unethical behaviours. At the organisational level, a risk management strategy is used to identify psychosocial safety hazards, design interventions at every level including policies, procedures and their implementation, development of management capacity, analysis and adjustment of job design and the response to individual characteristics related to bullying.

_______________ 1

A Neale and M Tuckey, ‘A Methodological View of Research on the Antecedents and Outcome of Workplace Harassment’ (2014) 87 Journal of Occupational and Organisational Psychology 225.

2

S Einarsen, Bullying and Harassment in the Workplace: Developments in Theory, Research and Practice, 2nd ed, Taylor and Francis, 2012, p 470.

3

M Moncrief and D Miletic, ‘Rogue NAB Traders Face their Judgement Day’ The Age, 1 July 2006, at .

4

Annual Financial Report 2004 at p 17.

5

R Hodson, V Roscigno, S Lopez, ‘Chaos and the Abuse of Power: Workplace Bullying in Organisational and Interactional Context’ (2006) 33(4) Work and Occupations 382.

6

M Dollard and T Bailey (eds), The Australian Workplace Barometer: Psychological Safety Climate and Working conditions in Australia, Australian Academic Press, 2014, p 149.

7

NAB Annual Financial Report 2005 at .

8

M Jenkins, Preventing and Managing Workplace Bullying and Harassment: A Risk Management Approach, Australian Academic Press, Brisbane, 2013.

9

S Einarsen, Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice, 2nd ed, Taylor and Francis, 2012, p 359.

10

S Leka and J Houdmont, Occupational Health Psychology, Wiley Blackwell, 2010.

11

Health and Safety Executive UK (HSE) .

12

Health and Safety Executive Standards, Before you start at .

13

Health and Safety Executive Standards, What Should you be Doing at .

14

Health and Safety Executive Standards, Manager Standards Indicator Tool at .

15

.

16

Health and Safety Authority Work Positive Profile at .

17

Dollard and Bailey, above fn 6, p 91.

18

The 6 Essentials of Workplace Well-Being at .

19

Psychological Risk Management Excellence Framework at .

20

Psychological Risk Management Vocational Education and Training at .

21

T Bailey, ‘Psychosocial Risk Prevention: Best Practice Standards Internationally and in Australia’, in The Australian Workplace Barometer, above fn 6, pp 283–4.

22

A La Montagne et al, ‘Workplace Mental Health: Developing an Integrated Intervention Approach’ (2014) 14 BMC Psychiatry 131.

23

HSE, above fn 11.

24

The Australian Workplace Barometer, above fn 6, p 289.

25

The Australian Workplace Barometer, pp 289–91.

26

For more detail on each level and an example of PSC HOC see The Australian Workplace Barometer, p 291.

27

S Leka, Management of Psychosocial Risks at Work: An analysis of the Findings of the European Survey of Enterprises on New and Emerging Risks (ESENER), (2012) European Risk Observatory Report at .

28

A Culture Gap Survey may be found at .

29

Influencer may be found at .

30

Become More Influential at .

31

See HEXACO scale at .

32

S Spain, P Harms and J Lebreton, ‘The Dark Side of Personality at Work’ (2014) 35 Journal of Organisational Behaviour S1.

33

R Schalk and D Rousseau, ‘Psychological Contracts in Employment’ in Handbook of Industrial, Work and Organisational Psychology, Sage Publications, 2001.

34

T Zagenczyk, S D Restubog, C Kiewitz, K Kiazad and R Tang, ‘Psychological Contracts as a Mediator between Machiavellianism and Employee Citizenship and Deviant Behaviours’ (2014) 40(4) Journal of Management 1098.

35

K Campbell and S Campbell, ‘On the Self-regulatory Dynamics Created by the Peculiar Benefits and Costs of Narcissism: A Contextual Reinforcement Model and Examination of Leadership’ (2009) 8 Self and Identity 214.

36

A Brunell, W Gentry, K Campbell, B Hoffman, K Kuhnert and K De Marree, ‘Leader Emergence: The Case of the Narcissistic leader’ (2008) 34 Personality and Social Psychology 166; D Jones and D Paulhus, ‘Different Provocations Trigger Aggression in Narcissists and Psychopaths’ (2010) 1(1) Social Psychological and Personality Science 12.

37

K Campbell, B J Hoffman, S Campbell and G Marchisio, ‘Narcissism in Organisational Contexts’ (2011) 21 Human Resource Management Review 268; J Meurs, S Fox, S Kessler and P Spector, ‘It’s all about me: the Role of Narcissism in Exacerbating the Relationship between Stressor and Counterproductive Work Behaviour’ (2013) 27(4) Work and Stress 368.

38

Jeff Foster in Hogan Assessments ebook (2014) ‘I’m Good Enough, I’m Smart Enough and Doggone it, People Like me’ The Upside of Narcissism, at .

39

Campbell, Hoffman, Campbell and Marchisio, above fn 37, p 217.

40

K Campbell, C Bush, A Brunell and J Shelton, ‘Understanding the Social Costs of Narcissism: the Case of Tragedy of the Commons’ (2005) 31 Personality and Social Psychology Bulletin 1358.

41

Schalk and Rousseau, above fn 33.

42

B J Whitaker and J J Dahling, ‘The Influence of Autonomy and Supervisor Political Skill on the Use and Consequences of Peer Intimidation in Organisations’ (2013) 26 Human Performance 353.

43

R Christie and F Geis, Studies in Machiavellianism, Social Science Series, Academic Press, New York, 1970.

44

MACH IV website at .

45

The B-Scan can be purchased at MHS Assessments at .

[page 123]

Chapter 8 Role of the Fair Work Commission [8.1] The Fair Work Commission (FWC) has been vested with a special jurisdiction to hear anti-bullying matters in light of its function in providing a quick, informal and just means of resolving disputes between employers and employees. While it is generally a much more accessible forum than a court, it has its own processes and systems with which a degree of familiarity is helpful. The purpose of this chapter is not to exhaustively outline how to run a bullying case in the FWC — such an undertaking is beyond the scope of this book and of dubious utility in any event given the breadth of the discretion afforded to FWC members in dealing with such matters. Instead, this chapter intends to provide readers with an outline of the functions of the FWC and an understanding of the way in which the FWC operates. The FWC website is a good resource for more detailed information about the FWC.1

What is the FWC? [8.2] The FWC is a statutory tribunal with a specific jurisdiction to determine certain disputes that are brought before it. In many ways, the FWC is like a court. It can determine disputes that are before it by taking sworn evidence and hearing submissions from the parties. These determinations are binding on the parties. However, despite its similarities, the FWC is not a court. The individuals making decisions are not judges, instead they are known as ‘members’ of the FWC. Commission members include the

President, Vice Presidents, Senior Deputy Presidents, Deputy Presidents and Commissioners. In addition to conducting hearings, FWC members also conduct mediation and conciliation conferences in order to assist the parties in coming to an agreed resolution of their dispute. The experience of the FWC so far has shown that the vast majority of anti-bullying applications settle through the use of these processes and only a minority proceed to trial.2 [page 124] If the dispute does not settle through the use of conciliation or mediation processes, the matter will proceed to hearing. It is important to note that the remedies available to the FWC are somewhat limited. As will be discussed in detail below, there is no scope for financial compensation in the anti-bullying jurisdiction. Instead, the remedy ordered by the FWC will be in the form of an order to stop bullying.

Jurisdiction of the FWC [8.3] A common issue faced by employees in bringing a claim to the FWC, is determining whether or not their employer falls within the jurisdiction of the Fair Work Act 2009 (Cth) (FW Act). It is important for employers to also be aware of the extent to which, if any, they are covered by the FW Act. It is important to understand that there some employers that will not be covered by the FW Act at all. In order to make a bullying complaint, it is a jurisdictional prerequisite that the applicant work in a ‘constitutionally-covered business’.3 It is important to note that the definition of a ‘constitutionally-covered business’ is narrower

than the term ‘national system employer’ that is utilised in other parts of the FW Act.4 A constitutionally-covered business is a Person who Conducts a Business or an Undertaking (PCBU) (within the meaning of the Work Health Safety Act 2011 (Cth)) and is either: a constitutional corporation (see below); the Commonwealth; a Commonwealth authority; or a body corporate incorporated in a territory. Additionally, any business or undertaking that is principally conducted in a territory or Commonwealth place (for example, airports) will be a constitutionally covered business. Constitutional corporations make up the bulk of employers in Australia. A constitutional corporation is a foreign corporation or a ‘trading or financial corporation formed within the limits of the Commonwealth’.5 Most traditional businesses will fall within the category of a ‘trading corporation’. For example, a retail store whose primary concern is trading goods would fall within the definition of a ‘trading corporation’. Similarly, a business that primarily engages in borrowing and lending would fall within the definition of a ‘financial corporation’. [page 125] More problematic, however, are corporations that do not easily fall within the categories ‘trading’ or ‘financial’. For example, whether or not a charitable organisation is a trading corporation will depend on whether that organisation engages in trading activities and the extent of those trading activities. The legal test that will be applied is whether or not the corporation

‘engages in substantial or significant trading activities notwithstanding that trading is not its primary purpose’.6 Less controversially, there are a number of businesses that will not be covered by the FW Act anti-bullying provisions. Any business that is not incorporated will only fall within the scope of the FW Act if it is principally conducted in a territory or a Commonwealth place. This includes employees of unincorporated partnerships and other unincorporated organisations. Further, employees of a state government or a state government authority will not be covered by the anti-bullying provisions. This includes, for example, teachers who are employed by the state governments and medical professionals working with the state health systems. It is also important to note that the anti-bullying jurisdiction encompasses not only employees, but ‘workers’ within the definition of the Work Health and Safety Act 2011 (Cth). Effectively, any person who undertakes work for an organisation is likely to fall within this definition. For example, a volunteer is not an employee. However, a volunteer is likely to fall within the definition of a ‘worker’ and would thus be able to make an anti-bullying application. As a result of the unique nature of the FWC’s anti-bullying jurisdiction, the FWC utilises some uncommon terminology when dealing with anti-bullying applications that it is helpful to be familiar with. The FWC will refer to the ‘employer/principal’ rather than the employer, as there is no need for an employment relationship to exist in order for an anti-bullying application to be made. The person making the application will be referred to as the applicant. Any person named in the application as having engaged in bullying behaviour will be referred to as ‘persons named’. For the sake of simplicity, the term ‘employer’ will be utilised in this chapter, in its informal sense, to refer to any person who conducts a business that may be the subject of an anti-bullying application, regardless of whether or not the person making the application is an employee in the strict sense of the term. Case study: Ms Kathleen McInnes [2014] FWC 1395

Ms McInnes was employed by Peninsula Support Services Inc (PSS). PSS is a community-based organisation that provides support to people with psychiatric disabilities and their carers. Ms McInnes alleged that she was bullied at work, but her employer raised a jurisdictional objection, claiming that it was not a constitutionally-covered business and that therefore her application should be dismissed. [page 126] The majority of PSS’ funds came from state and federal government grants, provided to run programs that were accessible free of charge to its clients. Commissioner Hampton relied on various authorities to conclude that the provision of government-funded services exists on a spectrum. On the one end of the spectrum are services that are provided to the government (often in the form of services available to the community) where the government will seek specific services at a competitive rate and will pay for the actual services provided. Such an arrangement will often result from a competitive tendering process and will constitute trading activities. On the other end of the spectrum are services that are the subject of government grants, whereby government subsidises the services provided by the organisation. Such grants are typically linked to performance requirements and benchmarks but are not funded on a fee-for-service basis. This arrangement does not constitute trading activities. The Commissioner found that the vast majority of PSS’ activities fell into the latter category and therefore it was not a trading corporation. Ms McInnes’s anti-bullying application was subsequently dismissed.

Case example: constitutionally-covered business vs national system employer There tends to be some confusion about the operation of the anti-bullying provisions in the FW Act. While the majority of the provisions of the FW Act apply to ‘national system employers’, the anti-bullying provisions apply only to ‘constitutionally-covered businesses’. The difference between these two terms effectively comes down to the power of the Federal government to make legislation. The Federal government does not have an express constitutional power to make industrial relations legislation. Instead, it relies on other powers, including the corporations and territories powers, as the constitutional basis for its industrial relations legislation. Businesses that fall within this framework are ‘constitutionally-covered businesses’. There are a number of employers, however, in relation to whom the Federal government has no power to make industrial relations’ laws, for example, unincorporated employers (such as sole traders or partnerships) who are located in any of the states. Most of the states (with the exception of Western Australia) have, however, referred certain powers to the Federal government. This allows the Federal government to make laws in relation to these employers. Employers that are covered under this broader coverage are known as ‘national system employers’.

Thus, it is possible for a person to be covered by unfair dismissal laws, which apply to national system employers, but not by the anti-bullying provisions, which apply only to constitutionally-covered businesses. It is important to be aware of this distinction.

[page 127]

Processes of the FWC [8.4] The FWC has established procedures to expeditiously deal with antibullying matters. An anti-bullying team has been established in order to ensure that anti-bullying matters are managed as efficiently as possible. Upon receipt of an anti-bullying application made by completing Form 72 (found on the FWC website), the anti-bullying team will review the file in order to ensure that the application is complete. The anti-bullying team may contact the applicant to confirm his or her intention to proceed with the claim. Once this has taken place, the anti-bullying team will send the application to the employer as well as the individuals named in the application. Responses will be sought from the employer/principal through completing Form 73 and the individuals named in the application through completion of Form 74, after which a file will be prepared compiling the application and all responses. The Anti-Bullying Panel Head will then either assign the file to a member of the FWC or to a staff conciliator. Staff conciliators are not members of the FWC but they are, however, highly experienced conciliators. This conciliation process is voluntary, and allows the parties to attempt to resolve the dispute between themselves with the assistance of a neutral third party. If the conciliation is not successful, the matter will be assigned to a member of the FWC to deal with. Once a file is allocated to a FWC member to deal with, the assigned member will determine whether the matter should be dealt with by

mediation, a preliminary conference or a hearing. It is important to note that the process that is followed will be in the hands of the member who is assigned to the matter. Each member will have his or her own process for dealing with anti-bullying matters and often that process will be tailored to the specific dispute at hand. For example, a member may decide, even though the parties have been unsuccessful in resolving the dispute with a staff conciliator, that a further conciliation conference conducted by the member is necessary to deal with the matter. Keeping in mind that the process that is followed is entirely in the hands of the member who is allocated the file, it is useful to illustrate a potential course of action that an anti-bullying dispute may take once an application is made in the FWC. As a general rule, most anti-bullying applications will be subject to a conciliation conference before a member of the FWC. These conciliation conferences tend to be scheduled between one and two months after the application is received and are conducted in private.

Conciliation conferences [8.5] Each member has their own method of conducting conciliation conferences. A common approach will involve the member requiring [page 128] every person involved in the application to physically attend the FWC. The conciliation conference will commence with all of the parties in the same room and the member will explain to the parties the way that the conciliation will be conducted. The member will also explain to the parties the main issues that he or she perceives to be in dispute. The member may ask the parties to explain how they perceive the dispute.

The member will then separate the parties, speaking to them individually in order to see how each party would like the dispute to be resolved. The member will often discuss the weaknesses and strengths of that parties’ case and how the case may be considered if it is arbitrated (that is, if the dispute becomes the subject of a hearing and a binding determination is made by a member). By speaking to both parties and analysing each parties’ respective position and interests, the member will assist the parties in attempting to find a mutually agreeable resolution to the dispute. Often, the members will rely on their practical employment relations’ experience in order to find a practical resolution to the dispute, as opposed to an overly technical or legalistic approach. Examples of agreed resolutions to bullying disputes are varied, as they will inevitably depend on the specifics of the dispute at hand. Some disputes settle with the employee, the target of the alleged bullying, agreeing to leave the organisation and the employer agreeing to pay a specific sum to the employee. While the FWC does not encourage such outcomes, it is sometimes involved in the facilitation of this kind of agreement. It is important to note that resolving a complex anti-bullying matter will often require a number of conciliation conferences. It is important to be patient with the process, which may require implementing certain arrangements and reporting back to the FWC after a few months in order to see whether or not things are going smoothly.

Hearings [8.6] If the dispute cannot be resolved by conciliation, the matter will proceed to hearing. A hearing is similar to a hearing in a courtroom. Evidence will be taken, both parties will have the opportunity to have their say and the member will make a decision about whether or not to make a stop bullying order. While the FWC operates much more informally than a court, it is still

bound by the rules of natural justice, which require the FWC to ensure that both sides are given the opportunity to put forward their case. In order to ensure that the parties are afforded natural justice, the FWC will generally conduct proceedings with a degree of formality to ensure that all parties are treated fairly. Unlike conferences, hearings are open to the public. A party can make an application for a hearing to be held in private, to limit who can attend the hearing or to prohibit the publication of names in a matter (ie, to ‘de-identify’ the individuals involved). [page 129]

Confidentiality orders [8.7] Once such an application is made, the member must determine whether a confidentiality order will be made. The default position of members will be to safeguard the principle of open justice and to provide transparency to the work of the FWC. Confidentiality orders will only be permitted where not doing so would defeat the proper administration of justice. Members will consider issues such as whether the public disclosure of sensitive information revealed in the course of proceedings could have a negative impact on a worker’s health or would be likely to render the worker’s continuing engagement unviable.7

Three parties, one dispute [8.8] It is important to note that in anti-bullying matters there are generally at least three parties with separate interests: the applicant, the employer and the person (or people) named in the application as having engaged in bullying conduct. Some employers will automatically align their

interests with the person named in the application, even to the extent of obtaining a single lawyer to represent both the organisation and the persons named. This strategy can cause difficulties for employers. It is not uncommon for information that the employer was not previously aware of, to be revealed during the course of FWC proceedings. Often, had the employer known of this information prior to the proceedings, it would have been aware that its interests were not wholly in alignment with the person named. Employers must be careful to ensure that the organisation’s interests are protected. This will require a careful consideration of the various interests involved and how they may interact. Case example: conflicting interests of employer and person named Jared has accused Carolyn of bullying him in the workplace. Before the company has a chance to investigate the matter, Jared makes an application to the FWC. The matter has been allocated to a member of the FWC who lists a conciliation conference. Jane, the company’s HR director, retains a lawyer for the purposes of the conference. The lawyer meets with Carolyn and Jane prior to the conference to discuss the situation. Jane, Carolyn and the lawyer arrive at the conference together. Jared is alone. During the course of the conference, it becomes clear to Jane that it is entirely possible that Carolyn has engaged in some bullying conduct, despite what Carolyn had told Jane and the lawyer in their private meeting. Jane and the lawyer must quickly re-evaluate their approach and determine that Jane may require further training in various procedures and policies of the company. [page 130] Carolyn feels like the company has turned its back on her. Jared feels like the company does not support him. Jane is concerned that, despite the resolution of the immediate dispute, further issues are likely to arise down the track involving Carolyn and Jared. While this is, to some degree, inevitable, the situation was needlessly complicated by assuming that the company’s interests would align with Carolyn’s at the commencement of the process.

This example highlights that extra care must be taken if the employer and the alleged bully are to have the same representation.

Possible outcomes [8.9] At the conclusion of the hearing, if no settlement has been reached, the member will make a decision to either: dismiss the application;8 or make any orders that he or she considers appropriate to prevent a worker from being bullied at work.

Before orders can be made [8.10] Prior to any orders being made, the member must be satisfied that the following two conditions in s 789FF of the FW Act have been met: the worker has been bullied at work by an individual or group of individuals (see Chapter 2 at 2.8); and there is a risk that the worker will continue to be bullied at work by the individual or group.9 If an employee is dismissed after making an anti-bullying application and before the matter is dealt with by the FWC, there is no continued risk of bullying and as such, the jurisdictional prerequisite of s 789FF(1) of the FW Act cannot be met. This means that the FWC will have no power to make the orders sought by the employee, and accordingly the application will not have reasonable prospects of success and must be dismissed.10 In the recent decision of the FWC Full Bench in Obatoki v Mallee Track Health and Community Services,11 Mr Obatoki raised various allegations of bullying against his employer in an anti-bullying application. However, his employment being terminated following his application meant that the FWC did not have the power to make any of the types of orders contemplated by s 789FF of the FW Act because there was no continued risk of bullying. As a result, Deputy President Kovacic dismissed the matter,

[page 131] at first instance, as having no reasonable prospects of success.12 The FWC Full Bench upheld this decision and confirmed that, once the employment relationship ceases to exist, the FWC has no power to make any of the types of orders contemplated by s 789FF of the FW Act. We note that in these circumstances, an employee may have other remedies available to them pursuant to s 394 (Unfair Dismissal Remedy) or s 365 (General Protections Dispute) of the FW Act. It is also possible for the anti-bullying matter to be resumed if the employee is dismissed but successfully reinstated through an unfair dismissal remedy or general protections application. If the employment relationship is restored, there is nothing to prevent the employee from re-agitating the anti-bullying application and the FWC’s power to make anti-bullying orders will also be reenlivened.

Orders [8.11] Once the two conditions discussed above have been satisfied, the member has the power to make anti-bullying orders. The orders can be directed towards the applicant, the individual whose behaviour has led to the application and/or the employer. To ensure consistency with any action being taken by other bodies (such as WHS state regulators), the member must take into account the following issues in deciding what should be contained in an order: any outcomes arising from an investigation into the matter by another person or body (whether the investigation is complete or not); any procedures available to the worker to resolve grievances or disputes; any outcomes arising from those procedures; and

any matters that the FWC considers relevant.13 The Explanatory Memorandum to the Fair Work Amendment Bill 2013 provides some examples of the types of anti-bullying orders that the FWC may make: requiring the individual or group of individuals to stop the specified behaviour; regular monitoring of behaviours by an employer; requiring compliance with an employer’s workplace bullying policy; the provisions of information and additional support and training to workers; and requiring review of the employer’s workplace bullying policy. There is really no limit to the types of orders that can be made. In addition to the list above, orders may be made referring parties to WHS regulators as well as orders for facilitated mediation or the engagement of an external consultant. [page 132] The only real limitation on the types of orders the FWC has the power to make in this jurisdiction, is that it cannot make an order requiring any financial payment such as a fine or compensation. The focus of the orders should be to prevent the worker from being bullied, to resolve the matter and enable the employment relationship to resume. Case study: CF [2015] FWC 5272 (5 August 2015) The following case study of a decision by Commissioner Hampton serves as a useful illustration of the Commission’s process and the types of orders that can be made following a finding that bullying has occurred. In this matter two employees (applicants) alleged that the property manager of a small real

estate business had engaged in continued bullying conduct. The behaviours alleged ranged from: belittling conduct; swearing, yelling and use of other inappropriate language; daily interference and undermining the applicants’ work; physical intimidation and ‘slamming’ of objects on the applicants’ desks; attempts to incite the applicants to victimise other staff members; and threats of violence. After the applicants reported the inappropriate behaviour, the employer conducted an informal investigation and made unsuccessful attempts to mediate the situation. The manager subsequently resigned from her position with the employer, but accepted an equivalent position with a related business at another location. At the hearing, the employer argued that because the manager had been removed, the applicants would have a safe working environment. Despite the relocation however, the applicants felt so intimidated that they had not returned to work. They argued that during the normal course of business, there was ongoing potential for interaction with the manager because the two businesses were related. The applicants also went on to lodge workers’ compensation claims for associated medical treatment and costs. The Commissioner made a decision, with the concession of the employer, that the property manager had bullied the applicants. He said that an ‘unprofessional’ workplace culture had persisted and interactions took place in the workplace that ‘created a risk to the health and safety of a number of the workers’.14 The Commissioner decided that there was a real risk the employees would continue to be bullied, which gave him the capacity to make the necessary orders. The Commissioner made orders by consent that he described as ‘conducive to the resumption and continuation of an ongoing safe and productive working relationship’.15 They can be summarised as follows: The applicants and manager are not to make contact or approach each other or attend the others’ business premises as long as they are employed; [page 133] The manager is not to have access to the applicants’ portfolios; The employer is to provide anti-bullying training and an updated anti-bullying policy and complaints handling procedure to its entire staff (including working directors). The anti-bullying policy is to set out appropriate future workplace behaviour and conduct; The employer is to provide written clarification of reporting arrangements when the applicants return to work; The parties will be de-identified in the Commission’s order and decision; and Confidentiality orders are made to protect the identity of the parties.16

The orders were made to remain in place for 24 months and were supported by all parties. The Commissioner noted that ‘the final outcome bodes well for the re-establishment of safe and constructive working relationship upon the applicants’ forthcoming return to the workplace’.17

Dismissal of application [8.12]

The FWC can dismiss an application on the following grounds:

the application is not made in accordance with the FW Act; the application is frivolous or vexatious; or the application has no reasonable prospects of success.18 An application may be considered frivolous or vexatious where it is so obviously hopeless that it cannot succeed or raises no real issue to be determined.19 An application will have no reasonable prospects of success where it is unarguable or groundless.20 As discussed above, the employment relationship being terminated giving rise to no continued risk of bullying, can lead to a finding of no reasonable prospects of success.

Contravening orders [8.13] Once a stop bullying order has been made, a person to whom it applies must not contravene any term of the order. This requirement is a civil remedy provision which means that if an order is breached, the person affected can apply to the Federal Court, the Federal Circuit Court or an eligible state or territory court for a financial penalty against the person [page 134] who has contravened the order. The person affected must apply to the

appropriate court within six years of the alleged contravention.21

Costs order [8.14] In the ordinary course, parties who incur legal costs in a matter before the FWC pay their own costs.22 However, the FWC has the discretion to order one party to pay the other party’s legal costs, known as a ‘costs order’.23 Costs orders are rarely granted in this jurisdiction and usually require exceptional circumstances, such as an element of misconduct on the part of the party being ordered to pay costs. Costs may be ordered either on a party-party basis (legal costs deemed necessary and reasonable) or an indemnity basis (all costs reasonably incurred).

Appeal process [8.15] A party who feels that the FWC has made an error in coming to a decision can appeal the decision in certain circumstances.24 However, the appeal process is not meant to provide an avenue for an unsuccessful party to rerun their case, simply because they are dissatisfied with the outcome of a decision. As such, an appeal may only be made with the permission of the FWC.25 The bar is set quite high for running a successful appeal and in each appeal, a Full Bench of the FWC comprising three to five members will determine two issues: whether permission to appeal should be granted; and whether there has been an error in the original decision. In order for the FWC to grant permission to appeal, the Full Bench must

be satisfied that it is in the public interest to do so.26 The task of assessing whether the public interest has been met has been described, in case law, as a discretionary one involving a broad value judgment.27 In GlaxoSmithKline Australia Pty Ltd v Makin, a FWC Full Bench identified some of the considerations that may attract the public interest: … the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where

[page 135] the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.28

In regards to error, there are two types — an error of law and an error of fact. An error of law is an error in the legal reasoning used to reach the decision. An error of fact occurs when the FWC makes a finding of fact that is not supported by the evidence that has been led by the parties. If the public interest test is satisfied and an appealable error of fact or law can be shown, the Full Bench will overturn the original decision. If however, the appeal is unsuccessful, the matter can then be further appealed to the Federal Court and then the High Court of Australia. It goes without saying that with each stage of appeal, the prospects of success are significantly reduced. _______________ 1

See .

2

For example, in the period July–September 2014, 189 bullying applications were lodged in the FWC. Of these, only 15 were finalised by a decision. Forty-eight were resolved during the course of proceedings and 31 were withdrawn after a conference or a hearing but prior to a decision being issued. The remainder were withdrawn at an earlier stage in the process. See Fair Work

Commission, Quarterly Report: Anti-Bullying Report Jul-Sep 2014, at . 3

Fair Work Act 2009 (Cth) s 789FD(1)(a).

4

Cf Fair Work Act 2009 (Cth) s 14.

5

Australian Constitution 1901 s 51(xx).

6

Quickenden v O’Connor (2001) 109 FCR 243 at 260 per Black CJ and French J.

7

Fair Work Act 2009 (Cth) s 593(3); Mac [2015] FWC 774 at [5]–[11] per Hatcher VP.

8

Fair Work Act 2009 (Cth) s 587(1).

9

Fair Work Act 2009 (Ch) s 789FF(1),

10

Shaw [2014] FWC 3408; Ravi [2014] FWC 7507; GC [2014] FWC 6988; Haywood [2014] FWC 9444; PK [2015] FWC 562; Jackson [2015] FWC 402; Bassanese [2015] FWC 3515.

11

Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661.

12

Obatoki v Mallee Track Health and Community Services [2014] FWC 8828.

13

Fair Work Act 2009 (Cth) s 789FF(2).

14

[2015] FWC 5272 at [20].

15

[2015] FWC 5272 at [38].

16

FWC Order (30 July 2015) PR569997.

17

[2015] FWC 5272 at [42].

18

Fair Work Act 2009 (Cth) s 587(3).

19

West v Hi-Trans Express (t/as NSW Logistics Pty Ltd) PR974807 [2006] AIRC 774; Taminiau and Thomson v Austin Group Ltd PR974223 [2006] AIRC 630.

20

Wright v Australian Customs Services PR926115 [2002] AIRC 1595 at [23].

21

Fair Work Act 2009 (Cth) s 544.

22

Fair Work Act 2009 (Cth) s 611(1).

23

Fair Work Act 2009 (Cth) s 611(2).

24

Fair Work Act 2009 (Cth) s 604(1).

25

Tokoda v Westpac Banking Corp (t/as Westpac) [2012] FWAFB 3995.

26

Fair Work Act 2009 (Cth) s 604(2).

27

Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78 at [44].

28

GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [44].

[page 137]

Part II Useful Documents

[page 139]

LEGISLATION The extracts of legislation reproduced here are current to 1 August 2015.

[page 141]

Fair Work Act 2009 No. 28, 2009 as amended

Contents Chapter 1—Introduction Part 1-1—Introduction Division 2—Object of this Act 3 Object of this Act Division 3—Definitions relating to the meanings of employee, employer etc 13 Meaning of national system employee 14 Meaning of national system employer 14A Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc 15 Ordinary meanings of employee and employer Chapter 4—Compliance and enforcement Part 4-1—Civil remedies Division 1—Introduction 537 Guide to this Part 538 Meanings of employee and employer Division 2—Orders Subdivision A—Applications for orders 544 Time limit on applications

Chapter 5—Administration Part 5-1—The Fair Work Commission Division 3—Conduct of matters before the FWC Subdivision A—Applications to the FWC 585 Applications in accordance with procedural rules 586 Correcting and amending applications and documents etc. 587 Dismissing applications 588 Discontinuing applications [page 142] Subdivision B—Conduct of matters before the FWC 589 Procedural and interim decisions 590 Powers of the FWC to inform itself 591 FWC not bound by rules of evidence and procedure 592 Conferences 593 Hearings 594 Confidential evidence 595 FWC’s power to deal with disputes Subdivision E—Appeals, reviews and referring questions of law 604 Appeal of decisions Subdivision F—Miscellaneous 611 Costs Division 7—Seals and additional powers and functions of the President and the General Manager 655 Disclosure of information by the FWC Chapter 6—Miscellaneous Part 6-4B—Workers bullied at work Division 1—Introduction 789FA Guide to this Part

789FB

Meanings of employee and employer

Division 2—Stopping workers being bullied at work 789FC Application for an FWC order to stop bullying 789FD When is a worker bullied at work? 789FE FWC to deal with applications promptly 789FF FWC may make orders to stop bullying 789FG Contravening an order to stop bullying 789FH Actions under work health and safety laws permitted 789FI This Part is not to prejudice Australia’s defence, national security etc. 789FJ Declarations by the Chief of the Defence Force 789FK Declarations by the DirectorGeneral of Security 789FL Declarations by the DirectorGeneral of ASIS

[page 143]

Chapter 1—Introduction Part 1-1—Introduction Division 2—Object of this Act 3

Object of this Act The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by: (a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and (b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and (c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and (d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and (e) enabling fairness and representation at work and the prevention of

discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and (f)

achieving productivity and fairness through an emphasis on enterpriselevel collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and mediumsized businesses.

[page 144]

Division 3—Definitions relating to the meanings of employee, employer etc 13

Meaning of national system employee A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement. Note:

14

Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

Meaning of national system employer (1) A national system employer is: (a) a constitutional corporation, so far as it employs, or usually employs, an individual; or (b) the Commonwealth, so far as it employs, or usually employs, an individual; or (c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or (d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as: (i)

a flight crew officer; or

(ii) a maritime employee; or (iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or (f)

a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901). Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers (2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if: (a) that employer: (i)

is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or [page 145]

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or (iii) is a whollyowned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and (b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer. (3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer. Endorsement of declarations (4) The Minister may, in writing: (a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or (b) revoke or amend such an endorsement. (5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment. Employers that cannot be declared (6) Subsection (2) does not apply to an employer that: (a) generates, supplies or distributes electricity; or (b) supplies or distributes gas; or (c) provides services for the supply, distribution or release of water; or (d) operates a rail service or a port; unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a whollyowned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body. (7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education

Support Act 2003) that is established by or under a law of a State or Territory. 14A Transitional matters relating to employers etc. becoming, or ceasing to be, national system employers etc (1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following: (a) an employer ceasing to be a national system employer because subsection 14(2) applies to the employer; [page 146] (b) an individual ceasing to be a national system employee because an employer ceases to be a national system employer for the reason referred to in paragraph (a); (c) an employer becoming a national system employer because subsection 14(2) ceases to apply to the employer; (d) an individual becoming a national system employee because an employer becomes a national system employer for the reason referred to in paragraph (c). (2) Without limiting subsection (1), regulations made for the purpose of that subsection may: (a) modify provisions of this Act or the Transitional Act; or (b) provide for the application (with or without modifications) of provisions of this Act, or the Transitional Act, to matters to which they would otherwise not apply. 15

Ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement. Note:

Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer. Note:

Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

[page 147]

Chapter 4—Compliance and enforcement Part 4-1—Civil remedies Division 1—Introduction 537 Guide to this Part This Part is about civil remedies. Certain provisions in this Act impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these civil remedy provisions. Subdivision A of Division 2 deals with applications for orders in relation to contraventions of civil remedy provisions and safety net contractual entitlements, and applications for orders to enforce entitlements arising under subsection 542(1). Subdivision B of Division 2 sets out the orders that can be made by the Federal Court, the Federal Circuit Court or an eligible State or Territory Court in relation to a contravention of a civil remedy provision. Division 3 sets out when proceedings relating to a contravention of a civil remedy provision may be dealt with as small claims proceedings. Division 4 deals with general provisions relating to civil remedies, including rules about evidence and procedure. Division 5 deals with unclaimed money. 538 Meanings of employee and employer In this Part, employee and employer have their ordinary meanings.

Note:

…

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).

[page 148] Division 2—Orders 544 Time limit on applications A person may apply for an order under this Division in relation to a contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred: (a) a civil remedy provision; (b) a safety net contractual entitlement; (c) an entitlement arising under subsection 542(1). Note 1: This section does not apply in relation to general protections court applications or unlawful termination court applications (see subparagraphs 370(a)(ii) and 778(a)(ii)). Note 2: For time limits on orders relating to underpayments, see subsection 545(5).

[page 149]

Chapter 5—Administration Part 5-1—The Fair Work Commission Division 3—Conduct of matters before the FWC Subdivision A—Applications to the FWC 585 Applications in accordance with procedural rules An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind. Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)). Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

586 Correcting and amending applications and documents etc. The FWC may: (a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or (b) waive an irregularity in the form or manner in which an application is made to the FWC. 587 Dismissing applications (1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if: (a) the application is not made in accordance with this Act; or (b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success. Note:

For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [page 150] 588 Discontinuing applications A person who has applied to the FWC may discontinue the application: (a) in accordance with the procedural rules (if any); and (b) whether or not the matter has been settled. Subdivision B—Conduct of matters before the FWC 589 Procedural and interim decisions (1) The FWC may make decisions as to how, when and where a matter is to be dealt with. (2) The FWC may make an interim decision in relation to a matter before it. (3) The FWC may make a decision under this section: (a) on its own initiative; or

(b) on application. (4) This section does not limit the FWC’s power to make decisions. 590 Powers of the FWC to inform itself (1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate. (2) Without limiting subsection (1), the FWC may inform itself in the following ways: (a) by requiring a person to attend before the FWC; (b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions; (c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC; (d) by taking evidence under oath or affirmation in accordance with the regulations (if any); (e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report; (f)

by conducting inquiries;

(g) by undertaking or commissioning research; (h) by conducting a conference (see section 592); (i)

by holding a hearing (see section 593).

591 FWC not bound by rules of evidence and procedure The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter). 592 Conferences

(1) For the purpose of performing a function or exercising a power of the FWC (other than a function or power under Part 2-6), the FWC may direct a person to attend a conference at a specified time and place. [page 151] Note:

Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.

(2) An FWC Member (other than an Expert Panel Member), or a delegate of the FWC, is responsible for conducting the conference. (3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public. Note:

This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).

(4) At a conference, the FWC may: (a) mediate or conciliate; or (b) make a recommendation or express an opinion. (5) Subsection (4) does not limit what the FWC may do at a conference. 593 Hearings (1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act. (2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3). Confidential evidence in hearings (3) The FWC may make the following orders in relation to a hearing

that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason: (a) orders that all or part of the hearing is to be held in private; (b) orders about who may be present at the hearing; (c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing; (d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following: (i)

evidence given in the hearing;

(ii) matters contained in documents before the FWC in relation to the hearing. (4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)). 594 Confidential evidence (1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so [page 152] because of the confidential nature of any evidence, or for any other reason: (a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter; (c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter; (d) the whole or any part of its decisions or reasons in relation to the matter. (2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)). 595 FWC’s power to deal with disputes (1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act. (2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways: (a) by mediation or conciliation; (b) by making a recommendation or expressing an opinion. (3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act. Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)). (4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision. Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section. … Subdivision E—Appeals, reviews and referring questions of law 604 Appeal of decisions (1) A person who is aggrieved by a decision: (a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act; may appeal the decision, with the permission of the FWC. [page 153] (2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. Note:

Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).

(3) A person may appeal the decision by applying to the FWC. … Subdivision F—Miscellaneous 611 Costs (1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if: (a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or (b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success. Note:

The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order. Note:

This subsection is a civil remedy provision (see Part 4-1).

[page 154] Division 7—Seals and additional powers and functions of the President and the General Manager 655 Disclosure of information by the FWC Information to which this section applies (1) This section applies to the following information: (a) information acquired by the FWC, or a member of the staff of the FWC, in the course of performing functions or exercising powers as the FWC; (b) information acquired by a person in the course of assisting the FWC under section 672, or in the course of performing functions, or exercising powers, as a consultant under section 673. Disclosure that is necessary or appropriate, or likely to assist administration or enforcement (2) The President may disclose, or authorise the disclosure of, the information if the President reasonably believes: (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, of the FWC; or (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.

[page 155]

Chapter 6—Miscellaneous Part 6-4B—Workers bullied at work Division 1—Introduction 789FA Guide to this Part This Part allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying. 789FB Meanings of employee and employer In this Part, employee and employer have their ordinary meanings.

[page 156] Division 2—Stopping workers being bullied at work 789FC Application for an FWC order to stop bullying (1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF. (2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force. Note:

Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

(3) The application must be accompanied by any fee prescribed by the regulations. (4) The regulations may prescribe: (a) a fee for making an application to the FWC under this section; and (b) a method for indexing the fee; and (c) the circumstances in which all or part of the fee may be waived or refunded. 789FD When is a worker bullied at work? (1) A worker is bullied at work if: (a) while the worker is at work in a constitutionally covered business:

(i)

an individual; or

(ii) a group of individuals; repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and (b) that behaviour creates a risk to health and safety. (2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner. (3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either: (a) the person is: (i)

a constitutional corporation; or

(ii) the Commonwealth; or (iii) a Commonwealth authority; or (iv) a body corporate incorporated in a Territory; or (b) the business or undertaking is conducted principally in a Territory or Commonwealth place; then the business or undertaking is a constitutionally covered business. [page 157] 789FE FWC to deal with applications promptly (1) The FWC must start to deal with an application under section 789FC within 14 days after the application is made. Note:

For example, the FWC may start to inform itself of the matter under section 590, it may decide to conduct a conference under section 592, or it may decide to hold a hearing under section 593.

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve matters that relate to: (a) Australia’s defence; or (b) Australia’s national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police. Note:

For another power of the FWC to dismiss applications under section 789FC, see section 587.

789FF FWC may make orders to stop bullying (1) If: (a) a worker has made an application under section 789FC; and (b) the FWC is satisfied that: (i)

the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group; then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. (2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and (b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and (c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and (d) any matters that the FWC considers relevant. [page 158] 789FG Contravening an order to stop bullying A person to whom an order under section 789FF applies must not contravene a term of the order. Note:

This section is a civil remedy provision (see Part 4-1).

789FH Actions under work health and safety laws permitted Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application under section 789FC. Note:

Ordinarily, if a worker makes an application under section 789FC for an FWC order to stop the worker from being bullied at work, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the bullying. This section removes that prohibition.

789FI

This Part is not to prejudice Australia’s defence, national security etc. Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to: (a) Australia’s defence; or (b) Australia’s national security; or (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

789FJ

Declarations by the Chief of the Defence Force (1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. [page 159]

789FK Declarations by the DirectorGeneral of Security (1) Without limiting section 789FI, the DirectorGeneral of Security may, by legislative instrument, declare that all or specified

provisions of this Part do not apply in relation to a person carrying out work for the DirectorGeneral. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms. 789FL Declarations by the DirectorGeneral of ASIS (1) Without limiting section 789FI, the DirectorGeneral of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the DirectorGeneral. (2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

[page 161]

Work Health and Safety Act 2011 No. 137, 2011 as amended

Contents Part 1—Preliminary Division 4—Application of Act 10 Act binds the Commonwealth 11 Extraterritorial application Part 2—Health and safety duties Division 4—Duty of officers, workers and other persons 27 Duty of officers 28 Duties of workers 29 Duties of other persons at the workplace

[page 162]

Part 1—Preliminary Division 4—Application of Act 10

Act binds the Commonwealth (1) This Act binds the Commonwealth. (2) The Commonwealth is liable for an offence against this Act. (3) Without limiting subsection (1), the Commonwealth is liable for a contravention of a WHS civil penalty provision.

11

Extraterritorial application This Act extends to every external Territory.

[page 163]

Part 2—Health and safety duties Division 4—Duty of officers, workers and other persons 27

Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the

business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps: (a) to acquire and keep uptodate knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying [page 164] with any duty or obligation of the person conducting the business or undertaking under this Act; and (f)

to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).

Examples: For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:

(a) reporting notifiable incidents; (b) consulting with workers; (c) ensuring compliance with notices issued under this Act; (d) ensuring the provision of training and instruction to workers about work health and safety; (e) ensuring that health and safety representatives receive their entitlements to training. 28

Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

29

Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must: (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or

undertaking to allow the person conducting the business or undertaking to comply with this Act.

[page 165]

RESOURCES

[page 167]

Additional Resources on Prevention of Bullying Assessment tools HEXACO The HEXACO honesty–humility dimension has been consistently shown to predict workplace deviance, counter-productive work behaviours, machiavellianism and unethical decision making in organisations. This tool may be found at . MACH IV Mach IV is a short test used to assess personality for degrees of machiavellianism. The tool and its scoring may be found at . B-SCAN The B-Scan assesses corporate psychotherapy and can be purchased at MHS Assessments . Narcissistic Personality Inventory (NPI) The full NPI has 40 items and the test and scoring may be found at the University of British Columbia homepage . Search for NPI using the search function.

A short NPI form may be found on the Columbia Business School website at .

Development Tools Kilmann Diagnostics for positive development Kilmann Diagnostics provides online courses and interactive forums for the development of leadership skills, including assessments and training at the individual, team and systemic levels. Individual level conflict management at basic and advanced levels that may be taken either individually or as a group; an organisational influence survey; [page 168] organisational courage assessment; and organisational belief survey. Team level Kilmanns Team-Gap Survey; and Team Management Course. Cultural systemic level Kilmann-Saxton Culture-Gap® Survey; and Culture Management Course. Further

information

can

be

found

at

.

Communication and Influence skills Vitalsmarts Vitalsmarts provides courses on communication when working with difficult people and situations such as holding employees accountable. See . The Australian and New Zealand sites can be found at . Courses provided for leadership development include: Crucial Conversations; Crucial Accountability; and Influencer.

Books Einarsen (Editor), Hoel (Editor), Zapf (Editor), Cooper (Editor), Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice, 2nd ed Taylor and Francis, 2012

[page 169]

FORMS

[page 171]

About the F72 application form Order to stop bullying What is bullying? Workplace bullying occurs when: an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work, and the behaviour creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is not bullying, for example reasonable performance management or directing a worker to perform duties in keeping with their job. The Fair Work Commission (the Commission) has the power to make an order to stop bullying. The Commission can only make an order if there is a risk that the worker will continue to be bullied at work by the particular individual or group. Accordingly, where the worker is no longer engaged at the workplace where they allege the bullying occurred, and in other circumstances where there is no risk of the bullying behaviour continuing, orders cannot be made. The Commission does not have the power to award compensation. For more information about anti-bullying, please see the Commission’s Antibullying Guide and Anti-bullying Benchbook. Who can use this form Use this form if you:

are a worker in a constitutionally-covered business, and you reasonably believe you have been bullied and that the bullying will continue, and you believe that this bullying behaviour creates a risk to health and safety. ‘A worker’ is defined in the Work Health and Safety Act 2011 (Cth) and includes employees, contractors, outworkers, apprentices, trainees, students gaining work experience and some volunteers. Members of the Australian Defence Force are excluded from the definition of ‘worker’. [page 172] A constitutionally-covered business includes a business or undertaking conducted: by a constitutional corporation—for example, a Pty Ltd company or an incorporated association conducting trading or financial operations; or by the Commonwealth or a Commonwealth authority; or by a body corporate incorporated in a Territory; or principally in a Territory or Commonwealth place. For more information please see the Commission’s Anti-bullying Guide.

Lodging your completed form 1.

Lodge your application along with any accompanying documents with the Commission. You can lodge your application in person, by post, by fax or by email with the Commission office in your state or territory. The addresses are available on our website at www.fwc.gov.au or by calling 1300 799 675. You can also lodge online using the Commission’s eFiling service at www.fwc.gov.au.

2.

Provide payment details so you can pay your application fee. The current application fee is available on the Lodge an application page on the Commission’s website www.fwc.gov.au. See the Application Fee section at the end of this form for further information.

Service of your completed form The Commission will serve a copy of your application on the other parties to this matter. This includes the following persons: the person or business employer/principal)

who

engages

you

(known

as

your

the person or people you have named in your application as engaging in bullying behaviour; and the employer/principal of the person or people you have named in your application as engaging in bullying behaviour. The response will also be served on any representatives for these parties if any are provided.

Where to get help Commission staff & resources Commission staff cannot provide legal advice. However, staff can give you information on: processes in the Commission how to make an application to the Commission how to fill out forms [page 173]

where to find useful documents such as legislation and decisions other organisations that may be able to assist you. The Commission’s website www.fwc.gov.au also contains a range of information that may assist. Throughout this form This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation Representation is where another person (such as a lawyer, union official or family member) speaks or acts on your behalf in relation to your application. There is no requirement for you to be represented when you appear at the Commission. You will need the permission of the Commission member dealing with your application if you wish to be represented by a lawyer or paid agent in a conference or hearing conducted by a Commission member, unless the representative is: employed by a union or employer organisation, a peak union or peak employer body, or one of your employees or officers (if you are an employer). If you decide to represent yourself in proceedings you will need to make sure you are well prepared. Permission is not required in order to have a lawyer or paid agent prepare and lodge your application with the Commission.

Language assistance If English is not your first language, you can call the Translating and Interpreting Service (TIS) on 131 450. You will need to tell the TIS operator:

what language you speak the name of the Fair Work Commission the phone number for the Fair Work Commission (1300 799 675). The TIS operator will place the call to the Commission and translate the call. The Commission can answer your call Monday to Friday, 9.00 am to 5.00 pm. The service is the cost of a local call.

Glossary of common terms Applicant—This is the person that is making an application. Jurisdictional objection—This is a type of objection a party can raise to an application. A party can make this kind of objection if they think that the Commission, for a technical or legal reason, cannot hear the matter. [page 174] Parties—A party is a person or organisation involved in a matter or case that is brought to the Commission. Service—Serving a document means giving a copy of the document to a person or organisation, usually to the other party to the matter. Where required, you can serve a document in a number of ways, including by email, fax, express or registered post, or in person. See the Commission’s Rules for more details of how service must be effected.

Disclosure of information Under section 655 of the Fair Work Act 2009, the President may disclose, or authorise the disclosure of, this response if he or she reasonably believes that the disclosure would be likely to assist in the administration or enforcement of a Commonwealth or State or Territory law.

Privacy The Commission collects the information (including personal information) provided to it in this form for inclusion on the case file, and may disclose this information to the other parties to this matter and to other persons. For more details of the Commission’s collection, use and disclosure of this information, please see the Privacy Notice for this form, or ask for a hard copy to be provided to you. A Remove the cover sheets and keep for future reference—they contain useful information

[page 175] Form F72—Application for an order to stop bullying Fair Work Act 2009, s. 789FC This is an application to the Fair Work Commission (the Commission) for an order to stop bullying in accordance with Part 6-4B of the Fair Work Act 2009.

Applicant worker These are the details of the person who is making the application (you).

Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

First name(s) Surname Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

Note: If you provide a mobile number the Commission may send reminders to you via SMS Do you need an interpreter? If you require an interpreter (other than a friend or family member) in order to participate in conciliation, conference or hearing, the Fair Work Commission will provide an interpreter at no cost.

[]

Yes—Specify language

[]

No

Do you require any special assistance at the conference (eg a hearing loop)? []

Yes—Please specify the assistance required

[]

No

Do you have a representative? This might be a lawyer, a union or a family member or friend who you wish to speak on your behalf. There is no requirement to have a representative. []

Yes—Provide representative’s details below

[]

No [page 176]

Applicant’s representative These are the details of the person or business who is representing you (if any).

Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

Name of person Firm, union or company Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

Applicant’s employer/principal These are the details of the person or business who employs or engages you.

Legal name of business Trading name of business ABN/ACN Contact person Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

Person(s) against whom bullying is alleged Fill in the details below for each person who you allege is engaging in bullying behaviour, including the details of the person or business who employs or engages them (if different to yours). If you do not know all their details, please leave those parts blank. Name of person against whom bullying is alleged Legal name of business that employs or engages them

[page 177]

Trading name of business that employs or engages them ABN/ACN Contact person Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

Is that person (or people) still in the workplace and/or are you still required to interact with them? []

Yes

[]

No

1.

Applicant worker’s employment or engagement

1.1

Are you still employed or engaged at the workplace where the alleged bullying behavior has been occurring? The Fair Work Commission can only make an order to stop bullying if there is a risk that you will continue to be bullied at work. If you are no longer engaged at the workplace where the alleged behaviour occurred please see the where to get help section at the start of this form or seek independent advice before continuing with your application.

1.2

[]

Yes

[]

No

In what capacity are you engaged? []

An employee

[]

A contractor or subcontractor

[]

An outworker

[]

An on-hire worker (including labour hire)

[]

An apprentice or trainee

[]

A student gaining work experience

[]

A volunteer

[]

Other (please specify) [page 178]

2.

Alleged bullying behaviour

2.1

Describe the behaviour you have experienced that you think constitutes bullying Please see the information in the cover sheets and the Commission’s Anti-bullying Guide about what constitutes bullying. The behaviour must be more than a single incident

Attach additional pages if necessary. 2.2

Describe an example of the behaviour, including where it occurred and how it creates a risk to health and safety (include where it happened and who witnessed the behaviour)

[page 179] Who was involved in the example above?

Did you report the incident? []

Yes. —Please provide details of who you made the report to, when it was made and the outcome of reporting the incident.

[]

No

How many times has this type of behaviour occurred? []

Once

[]

Every now and then

[]

Monthly

[]

Weekly

[]

Almost every day

How long ago did this behaviour start happening?

When was the last time this behaviour happened?

[page 180] 2.3

Describe another example of the behaviour, including where it occurred and how it creates a risk to health and safety (include where it happened and who witnessed the behaviour)

Who was involved in the example above?

Did you report the incident? []

Yes. —Please provide details of who you made the report to, when it was made and the outcome of reporting the incident.

[]

No

How many times has this type of behaviour occurred? []

Once

[]

Every now and then

[]

Monthly

[]

Weekly

[]

Almost every day [page 181]

How long ago did this behaviour start happening?

When was the last time this behaviour happened?

Attach additional pages if you would like to provide further examples of the alleged bullying behaviour. 3.

Performance management or disciplinary action

3.1

Have you been advised that you are not performing your duties to the required standard or that you are facing disciplinary action?

3.2

[]

Yes

[]

No—Go to question 4

Please provide details of who has advised you of this and what action is being taken or has taken place

4.

Bullying policy or grievance or dispute resolution procedure

4.1

Does the person or business who employs or engages you have a bullying policy or any procedure for handling grievances or disputes? []

Yes

[]

No

[]

I don’t know [page 182]

4.2

4.3

Have you made a complaint about bullying, whether or not it is required under a bullying policy? []

Yes.—Please detail who you made the report to, when you made it and what response you received (if any).

[]

No—Go to question 5

If the person or business who employs or engages you does have a bullying policy, has this policy or procedure been followed with

regard to the alleged bullying behaviour? []

Yes

[]

No

[]

I don’t know

5.

Immediate risk in the workplace

5.1

Are there any immediate risks to you in the workplace that the Fair Work Commission should be aware of?

5.2

[]

Yes

[]

No—Go to question 6

Please explain what you consider to be the immediate risk (i.e. risk to your health and safety or any other matters). If there is a risk to you of violence or physical assault, or if there has already been violence or a physical assault, you can contact your local police. Physical violence and threats of violence may be criminal offences.

[page 183] 6.

Complaints made elsewhere

6.1

Have you made a complaint about the alleged bullying behaviour

to another agency or organisation? (For example, your state or territory WHS regulator (eg. WorkCover, WorkSafe), the police etc.) []

Yes

[]

No—Go to question 7

6.2

Please provide details of this complaint. Include the type of complaint, the name of the organisation or agency you lodged your complaint with, and whether the complaint is still being dealt with.

7.

Remedy

7.1

What do you think needs to happen for the alleged bullying behaviour to stop and for you to continue working at the workplace? See the Commission’s Anti-bullying Guide for more information about the kind of orders that may be made. The Commission cannot order compensation. Further, the Commission will not be promoting or recommending monetary settlements of applications.

[page 184] Consent to contact by researchers [ ] I consent to my contact details being provided to an external provider for the purposes of participating in research. The Fair Work Commission undertakes research with participants in anti-bullying matters to ensure a high quality process. Some research may be undertaken by external providers on behalf of the Fair Work Commission. Signature If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field below. You must still complete all the fields below. Signature Name Date Capacity/Position This form must be signed by the Applicant or the Applicant’s representative. Where it is not being signed by the Applicant, include the name and signature of the person who is signing the form on the Applicant’s behalf in the Capacity/Position field above.

Application fee The current application fee is available on the Lodge an application page on the Commission’s website www.fwc.gov.au. The Fair Work Act 2009 requires a fee to be paid on lodgment of this

application with the Fair Work Commission. Where applicable, any refund of the application fee will be forwarded by cheque to the Applicant at the address provided on this application form.

Financial hardship If paying the fee will cause you financial hardship, you can apply to have the fee waived. If you are applying to have the fee waived you must complete and lodge the fee waiver form at the same time as you lodge your application. Note that the Commission will not forward a copy of this form to the Respondent. The Fee waiver form can be downloaded from the Fair Work Commission website www.fwc.gov.au. [page 185]

Payment options [ ] I have completed the Fee Waiver form and have attached it to my application. [ ] I am paying by cash—Cash payments can only be made in person at one of the Fair Work Commission offices. Payment should be made at the same time as the application is lodged. [ ] I have attached a cheque or money order to this application—Cheques and money orders should be made payable to the Collector of Public Monies, FWC. Please note that the cheque or money order must be for the exact amount of the application fee, if it is not it may cause the processing of your application to be delayed. [ ] I am paying by credit card—If you are lodging this form in person or by post please provide your credit card details below. The Fair Work Commission does not accept Diners Club or American Express. [ ] Visa

[ ] MasterCard

Card number: __ __ __ __ __ __ __ __ __ __ __

Card expiry date: __ __ / __ __

Cardholder’s name: ......................................... Signature: ..................................................

Note: If you are lodging your application by email, credit card details must not be provided on this form. Please ensure that you have provided a phone number so that a staff member can contact you and ask for your credit card payment over the phone. You should expect a call within 7 days of the Commission receiving your application. Payer details Who is making the payment? [ ] The Applicant

[ ] The Applicant’s representative

[ ] Other—Please complete the details

Full name Postal address State or territory

Postcode

Phone number

Email address

PLEASE RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

[page 187]

About the F73 employer/principal response Order to stop bullying What is bullying? Workplace bullying occurs when: an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work, and the behaviour creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is not bullying, for example reasonable performance management or directing a worker to perform duties in keeping with their job. Workers are only covered by the national anti-bullying laws if they work in certain kinds of businesses or undertakings. These include a business or undertaking conducted: by a constitutional corporation—for example, a Pty Ltd company or an incorporated association conducting trading or financial operations; by the Commonwealth or a Commonwealth authority; by a body corporate incorporated in a Territory; or principally in a Territory or Commonwealth place. The Fair Work Commission (the Commission) has the power to make an order to stop bullying. The Commission can only make an order if there is a risk that the worker will continue to be bullied at work by the particular

individual or group. Accordingly, where the worker is no longer engaged at the workplace where they allege the bullying occurred, and in other circumstances where there is no risk of the bullying behaviour continuing, orders cannot be made. The Commission does not have the power to award compensation. For more information about anti-bullying, please see the Commission’s Anti-bullying Guide and Anti-bullying Benchbook.

Who can use this form This form should be used by an employer or principal who has been served with a Form F72—Application for an order to stop bullying. [page 188]

Lodging and serving the completed form 1.

The employer/principal must lodge the response along with any accompanying documents with the Commission within 7 calendar days after being served with the application for an order to stop bullying. The response can be lodged in person, by post, by fax or by email with your State or Territory office. The addresses are available on our website at www.fwc.gov.au or by calling 1300 799 675.

2.

Unless directed by the Commission otherwise, the employer/principal must also serve a copy of the response on the other parties to this matter and their legal or other representatives within 7 calendar days after being served with the application for an order to stop bullying. The other parties are: the worker who has made the application (the Applicant worker), and each person named in the application as an employer or principal, and each person named in the application as allegedly engaging in bullying

behaviour. The Commission may issue a direction that requires the employer/principal to serve a copy of the response on some but not all of the parties specified above. It is very important, therefore, that you carefully read all of the information sent by the Commission before serving the response.

Where to get help Commission staff & resources Commission staff cannot provide legal advice. However, staff can give you information on: processes in the Commission how to make an application to the Commission how to fill out forms where to find useful documents such as legislation and decisions other organisations that may be able to assist you. The Commission’s website www.fwc.gov.au also contains a range of information that may assist. Throughout this form This icon appears throughout the form. It indicates information to help you answer the question following.

[page 189] Legal or other representation Representation is where another person (such as a lawyer, union official or family member) speaks or acts on your behalf in relation to your matter. There is no requirement for you to be represented when you appear at the

Commission. You will need the permission of the Commission member dealing with your matter if you wish to be represented by a lawyer or paid agent in a conference or hearing conducted by a Commission member, unless the representative is: employed by a union or employer organisation, a peak union or peak employer body, or one of your employees or officers (if you are an employer). If you decide to represent yourself in proceedings you will need to make sure you are well prepared. Permission is not required in order to have a lawyer or paid agent prepare and lodge your response with the Commission. Language assistance If English is not your first language, you can call the Translating and Interpreting Service (TIS) on 131 450. You will need to tell the TIS operator: what language you speak the name of the Fair Work Commission the phone number for the Fair Work Commission (1300 799 675). The TIS operator will place the call to the Commission and translate the call. The Commission can answer your call Monday to Friday, 9.00 am to 5.00 pm. The service is the cost of a local call. Glossary of common terms Applicant—This is the person that is making an application. Jurisdictional objection—This is a type of objection a party can raise to an application. A party can make this kind of objection if they think that the Commission, for a technical or legal reason, cannot hear the matter.

Parties—A party is a person or organisation involved in a matter or case that is brought to the Commission. Service—Serving a document means giving a copy of the document to a person or organisation, usually to the other party to the matter. Where required, you can serve a document in a number of ways, including by email, fax, express or registered post, or in person. See the Commission’s Rules for more details of how service must be done. [page 190]

Disclosure of information Under section 655 of the Fair Work Act 2009, the President may disclose, or authorise the disclosure of, this response if he or she reasonably believes that the disclosure would be likely to assist in the administration or enforcement of a Commonwealth or State or Territory law. Privacy The Commission collects the information (including personal information) provided to it in this form for inclusion on the case file, and may disclose this information to the other parties to this matter and to other persons. For more details of the Commission’s collection, use and disclosure of this information, please see the Privacy Notice for this form, or ask for a hard copy to be provided to you. Remove the cover sheets and keep for future reference—they contain useful information

Form F73—Response from an employer/principal to an application for an order to stop bullying Fair Work Act 2009, s. 789FC, Fair Work Commission Rules 2013, rule 38A This is a response to an application to the Fair Work Commission (the

Commission) for an order to stop bullying in accordance with Part 6-4B of the Fair Work Act 2009.

The Applicant These are the details of the worker who made the application (the Applicant worker). You can find this information on the application form F72 and correspondence from the Commission. First name(s) Surname Commission matter number

Employer/principal The employer/principal is:

the person or business who employs or engages the Applicant; and/or the person or business who employs or engages a person who has allegedly engaged in bullying behaviour. [page 191]

Legal name of business Trading name of business ABN/ACN Contact person Title Postal address Suburb

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

State or territory

Postcode

Phone number

Fax number

Email address

Note: If you provide a mobile number the Commission may send reminders to you via SMS Who does the employer/principal employ or engage? []

The Applicant worker

[]

One or more people against whom bullying is alleged

[]

Neither - please provide any detail on the correct parties

[]

Other - please detail

Do you need an interpreter? If you require an interpreter (other than a friend or family member) in order to participate in conciliation, conference or hearing, the Fair Work Commission will provide an interpreter at no cost.

[ ] Yes—Specify language [ ] No

Do you require any special assistance at the conference (eg a hearing loop)? [ ] Yes—Please specify the assistance required [ ] No

Does the employer/principal have a representative? This might be a lawyer, a union or a family member or friend who you wish to speak

on the employer’s/principal’s behalf. There is no requirement to have a representative.

[]

Yes—Provide representative’s details below

[]

No [page 192]

Employer/principal’s representative These are the details of the person or business who is representing the employer/principal (if any).

Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

Name of person Firm, union or company Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

1. 1.1

1.2

The employment/engagement Is the Applicant still employed or engaged at the place where the alleged bullying took place? []

Yes

[]

No

[]

I don’t know

Is the person (or people) against whom bullying has been alleged

still employed, engaged or otherwise involved at the place where the alleged bullying occurred?

2.

[]

Yes

[]

No

[]

I don’t know

Awareness of the alleged bullying behaviour You do not need to answer questions 2, 3, 4 and 5 if you believe on reasonable grounds that your answers may tend to prove that you have committed a criminal offence.

2.1

Was the employer/principal aware that the Applicant worker perceived that he or she was being bullied at work? []

Yes

[]

No [page 193]

2.2

What did the Applicant worker report to the employer/principal about the alleged bullying behaviour, if anything?

2.3

What is the employer’s/principal’s response to the Applicant worker’s claims that he or she is being bullied, including whether the employer/principal agrees that he or she has experienced bullying at work? Respond to the examples that the Applicant has provided in question 2 of the application.

[page 194] 3. 3.1

3.2

Complaints made by the applicant Has the Applicant made any complaint about the alleged bullying? []

Yes

[]

No—Go to question 4

[]

I don’t know—Go to question 4

Please describe the complaint made by the Applicant worker and the steps taken by the employer/principal in response. Provide

details of the outcome of any investigation.

4. 4.1

4.2

Bullying policy or grievance or dispute resolution procedure Does the employer/principal have a bullying policy or any procedure for handling grievances or disputes? []

Yes

[]

No—Go to question 5

If the Applicant worker made a complaint in accordance with a bullying policy or procedure, was it made and managed in accordance with the policy or procedure? []

Yes

[]

No [page 195]

5.

Reasonable management action, including performance

5.1

management and/or disciplinary action Has the Applicant worker been advised that he or she is not performing his or her duties to the required standard or that he or she is facing disciplinary action? []

Yes

[]

No—Go to question 6

5.2

Please provide details of any performance issues or conduct requiring disciplinary action, and specify what (if any) has been taken by management in respect of the Applicant worker that you consider relevant to this application.

6. 6.1

Jurisdictional objections Does the employer/principal have any jurisdictional objections to the application? Jurisdictional objections relate to why a worker is not eligible to make an application to the Commission. An objection is not simply that you think that the worker was not bullied. The Commission’s Anti-bullying BenchBook has more information on jurisdictional objections.

[]

Yes

[]

No—Go to the next section [page 196]

6.2

On what basis does the employer/principal object? If objecting on multiple grounds, you can select more than one item from the list below. []

The Applicant worker does not meet the definition of a ‘worker’

[]

The Applicant worker is not working in a ‘constitutionallycovered business’

[]

The Applicant worker was not at work when the alleged bullying behaviour occurred

[]

The Applicant worker is a member of the Defence Force

[]

The application relates to matters involving Australia’s defence or national security, or an existing or future covert or international operation of the Australian Federal Police

[]

The alleged bullying behaviour was reasonable management action, carried out in a reasonable manner

[]

Other

Explain why the employer/principal objects on these grounds

Consent to contact by researchers [ ] I consent to my contact details being provided to an external provider for the purposes of participating in research. The Fair Work Commission

undertakes research with participants in anti-bullying matters to ensure a high quality process. Some research may be undertaken by external providers on behalf of the Fair Work Commission. Signature If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field below. You must still complete all the fields below.

[page 197]

Signature Name Date Capacity/Position This form must be signed by the employer/principal or their representative. Where it is not being signed by the employer/principal, include the name and signature of the person who is signing the form on the employer/principal’s behalf in the Capacity/Position field above. PLEASE RETAIN A COPY OF THIS RESPONSE FOR YOUR RECORDS

[page 199]

About the F74 response from a person against whom bullying has been alleged Order to stop bullying What is bullying? Workplace bullying occurs when: an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work, and the behaviour creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is not bullying, for example reasonable performance management or directing a worker to perform duties in keeping with their job. Workers are only covered by the national anti-bullying laws if they work in certain kinds of businesses or undertakings. These include a business or undertaking conducted: by a constitutional corporation—for example, a Pty Ltd company or an incorporated association conducting trading or financial operations; by the Commonwealth or a Commonwealth authority; by a body corporate incorporated in a Territory; or principally in a Territory or Commonwealth place. The Fair Work Commission (the Commission) has the power to make an order to stop bullying. The Commission can only make an order if there is a

risk that the worker will continue to be bullied at work by the particular individual or group. Accordingly, where the worker is no longer engaged at the workplace where they allege the bullying occurred, and in other circumstances where there is no risk of the bullying behaviour continuing, orders cannot be made. The Commission does not have the power to award compensation. For more information about anti-bullying, please see the Commission’s Antibullying Guide and Anti-bullying Benchbook. Who can use this form Use this form if you are an individual named in an application for an order to stop bullying and have been served with a form F72 and you wish to provide a written response. Please note, however, that it is not mandatory to provide a response. [page 200]

Lodging and serving your completed form 1.

If you wish to provide a written response you must lodge your response along with any accompanying documents with the Commission within 7 calendar days after being served with the application for an order to stop bullying. You can lodge your response in person, by post, by fax or by email with your State or Territory office. The addresses are available on our website at www.fwc.gov.au or by calling 1300 799 675.

2.

If you lodge a response, unless directed by the Commission otherwise, you must also serve a copy of your response on the other parties to this matter and their legal or other representatives within 7 calendar days after being served with the application for an order to stop bullying. The other parties are:

the worker who has made the application (the Applicant worker), and each person named in the application as allegedly engaging in the bullying behaviour, and each person named in the application as an employer or principal. The Commission may issue a direction that requires you to serve a copy of your response on some but not all of the parties specified above. It is very important, therefore, that you carefully read all of the information sent to you by the Commission before serving your response.

Where to get help Commission staff & resources Commission staff cannot provide legal advice. However, staff can give you information on: processes in the Commission how to make an application to the Commission how to fill out forms where to find useful documents such as legislation and decisions other organisations that may be able to assist you. The Commission’s website www.fwc.gov.au also contains a range of information that may assist. Throughout this form This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation Representation is where another person (such as a lawyer, union official or family member) speaks or acts on your behalf in relation to your matter.

[page 201] There is no requirement for you to be represented when you appear at the Commission. You will need the permission of the Commission member dealing with your matter if you wish to be represented by a lawyer or paid agent in a conference or hearing conducted by a Commission member, unless the representative is: employed by a union or employer organisation, a peak union or peak employer body, or one of your employees or officers (if you are an employer). If you decide to represent yourself in proceedings you will need to make sure you are well prepared. Permission is not required in order to have a lawyer or paid agent prepare and lodge your response with the Commission.

Language assistance If English is not your first language, you can call the Translating and Interpreting Service (TIS) on 131 450. You will need to tell the TIS operator: what language you speak the name of the Fair Work Commission the phone number for the Fair Work Commission (1300 799 675). The TIS operator will place the call to the Commission and translate the call. The Commission can answer your call Monday to Friday, 9.00 am to 5.00 pm. The service is the cost of a local call.

Glossary of common terms Applicant—This is the person that is making an application.

Jurisdictional objection—This is a type of objection a party can raise to an application. A party can make this kind of objection if they think that the Commission, for a technical or legal reason, cannot hear the matter. Parties—A party is a person or organisation involved in a matter or case that is brought to the Commission. Service—Serving a document means giving a copy of the document to a person or organisation, usually to the other party to the matter. Where required, you can serve a document in a number of ways, including by email, fax, express or registered post, or in person. See the Commission’s Rules for more details of how service must be done.

Disclosure of information Under section 655 of the Fair Work Act 2009, the President may disclose, or authorise the disclosure of, this response if he or she reasonably believes that the disclosure would be likely to assist in the administration or enforcement of a Commonwealth or State or Territory law. [page 202] Privacy The Commission collects the information (including personal information) provided to it in this form for inclusion on the case file, and may disclose this information to the other parties to this matter and to other persons. For more details of the Commission’s collection, use and disclosure of this information, please see the Privacy Notice for this form, or ask for a hard copy to be provided to you. Remove the cover sheets and keep for future reference—they contain useful information

Form F74—Response from a person against whom bullying has

been alleged to an application for an order to stop bullying Fair Work Act 2009, s. 789FC, Fair Work Commission Rules 2013, rule 38A This is a response to an application to the Fair Work Commission (the Commission) for an order to stop bullying in accordance with Part 6-4B of the Fair Work Act 2009.

The Applicant These are the details of the worker who made the application (the Applicant worker). You can find this information on the application form F72 and correspondence from the Commission. First name(s) Surname Commission matter number

Person against whom bullying has been alleged These are the details of the person named in the application as allegedly having engaged in bullying behaviour (you).

Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

First name(s) Surname Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

[page 203]

Note: If you provide a mobile number the Commission may send reminders to you via SMS Do you have a representative? This might be a lawyer, a union or a family member or friend who you wish to speak on your behalf. There is no requirement to have a representative.

[]

Yes—Provide representative’s details below

[]

No

Your representative Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

Name of person Firm, union or company Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

Do you need an interpreter? If you require an interpreter (other than a friend or family member) in order to participate in conciliation, conference or hearing, the Fair Work Commission will provide an interpreter at no cost.

[ ] Yes—Specify language [ ] No

Do you require any special assistance at the conference (eg a

hearing loop)? [ ] Yes—Please specify the assistance required [ ] No

Employer/principal of the person against whom bullying has been alleged These are the details of the person or business who employs or engages you. This may be the same as the employer/principal who employs or engages the Applicant.

[page 204] Is your employer/principal the same as the employer/principal who employs or engages the Applicant? []

Yes—Go to question 1

[]

No—Please complete the details below for your employer/principal

Legal name Trading name ABN/ACN Contact person Title

[ ] Mr [ ] Mrs [ ] Ms [ ] Other please specify:

Postal address Suburb State or territory

Postcode

Phone number

Fax number

Email address

1. 1.1

2.

The employment/engagement Are you still employed or engaged at the place where the alleged bullying took place? []

Yes

[]

No

Awareness of the alleged bullying behaviour You do not need to answer questions 2, 3, 4 and 5 if you believe on reasonable grounds that your answers may tend to prove that you have committed a criminal offence.

2.1

Were you aware that the Applicant worker perceived you were bullying him or her at work? []

Yes

[]

No [page 205]

2.2

What is your understanding of what the Applicant worker reported about the alleged bullying behaviour, if anything?

2.3

What is your response to the Applicant worker’s claims that he or she is being bullied, including whether you agree that he or she has experienced bullying at work? Respond to the examples that the Applicant has provided in question 2 of the application that relate to you. Explain why you think this is or is not bullying at work.

[page 206] 3. 3.1

3.2

Concerns raised by the employer/principal Has your employer/principal and/or the Applicant worker raised any concerns about your alleged behaviour? []

Yes

[]

No—Go to question 4

Please provide details of any instances where these allegations were brought to your attention. Include details of any disciplinary action taken or any other action taken that was intended to prevent bullying at work.

4.

Jurisdictional objections Jurisdictional objections relate to why a worker is not eligible to make an application to the Commission. A jurisdictional objection is not simply that you do not think that the worker was bullied. Information on the kinds of objections you can make can be found in the Commission’s Anti-bullying Benchbook.

4.1

4.2

Do you have any jurisdictional objections to the worker’s application? []

Yes

[]

No—Go to the next section

On what basis do you object? If you object on multiple grounds you can select more than one item from the list below. []

The Applicant worker does not meet the definition of a ‘worker’ [page 207]

[]

The Applicant worker is not working in a ‘constitutionallycovered business’

[]

The Applicant worker was not at work when the alleged bullying behaviour occurred

[]

The Applicant worker is a member of the Defence Force

[]

The application relates to matters involving Australia’s defence or national security, or an existing or future covert or international operation of the Australian Federal Police

[]

The alleged bullying behaviour was reasonable management action carried out in a reasonable manner

[]

Other

Explain why you object on these grounds

Consent to contact by researchers [ ] I consent to my contact details being provided to an external provider for the purposes of participating in research. The Fair Work Commission undertakes research with participants in anti-bullying matters to ensure a high quality process. Some research may be undertaken by external providers on behalf of the Fair Work Commission. [page 208] Signature If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field below. You must still complete all the fields below. Signature Name Date

Capacity/Position This form must be signed by the person against whom bullying has been alleged, or that person’s representative. Where it is not being signed by the person against whom bullying has been alleged, include the name and signature of the person who is signing the form in the Capacity/Position field above. PLEASE RETAIN A COPY OF YOUR RESPONSE FOR YOUR OWN RECORDS

Index References are to paragraphs

A Accountability coherent workplaces, characteristics of …. [5.3] Anti-Bullying Bench Book management action, examples of …. [2.9] release of …. [2.8] Anti-bullying provisions anti-bullying matters, special jurisdiction of Fair Work Commission in respect of …. [8.1] Fair Work Act 2009, of commencement …. [2.6] preliminary matters …. [2.7] reasonable management action exception …. [2.9] Anti-discrimination law attributes covered by …. [2.5] workplace bullying, and …. [2.5] Appeal process Fair Work Commission, from …. [8.15] Assault criminal offences, and relationship with workplace bullying …. [2.4]

B Brodie’s Law enactment of …. [2.4] Bullying aggressive behaviours and …. [4.1] borderline bullying scenario …. [3.27]–[3.34] causes …. [5.1]–[5.21] complexity of factors contributing to …. [5.21] consequences …. [5.17]–[5.21] culture, for …. [5.19] individual, for the …. [5.18] organisation, for …. [5.20] contexts …. [5.1]–[5.21] direct …. [1.2] examples of …. [1.2] impact of …. [3.15] explicit, direct bullying and …. [3.17]–[3.20] downwards …. [1.4] global companies, broader context and …. [5.2] impact, traumatic, of …. [3.10] indirect …. [1.3] covert and serial bullying …. [3.16], [3.21]–[3.26] examples of …. [1.3] intentional …. [1.4]

mechanism of …. [3.1]–[3.35] motivations and objectives of …. [4.2]–[4.5] harm, intent to …. [4.2] deliberate …. [4.4] personalities and behaviours, and interaction with work conditions and global developments …. [5.1]–[5.21] shame, effect of humiliation tactics and …. [3.11] sidewards …. [1.4] systemic antecedents of …. [5.1]–[5.21] tactics, and depth of psychological injury …. [3.14]–[3.34] tribal tactics …. [3.12] undermining tactics …. [3.13] unintentional …. [1.4] upwards …. [1.4] workplace anti-discrimination law, and …. [2.5] at work, bullying …. [2.10] best practice procedures in dealing with …. [6.1]–[6.16] Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice, as useful book …. [7.7] complaint no further action, when employee requests …. [6.2] reactive interventions, with individuals following complaint …. [7.3]–[7.5] receiving …. [6.2]

criminal law, and …. [2.4] definition …. [1.1] discrete issue, as …. [2.1] dismissal of employees, for bullying conduct …. [2.13] eliminating, proactively …. [6.16] intervention, prevention and …. [7.1]–[7.34] person who bullies, intervention for …. [7.4] planning interventions …. [7.14] reactive interventions, with individuals following complaint …. [7.3]–[7.5] target, intervention for …. [7.3] investigation accuracy …. [6.7] bias, avoiding …. [6.9] commencing …. [6.3]–[6.4] conducting …. [6.5]–[6.10] confidentiality …. [6.5] emails, evidence in …. [6.10] evidence, taking …. [6.8] internal, external or …. [6.3] preliminary issues …. [6.3]–[6.4] purpose of …. [6.4] speed …. [6.6] legal risk and …. [2.1]–[2.14] variety of sources of …. [2.14]

managers, and role of …. [7.19] managing …. [6.1]–[6.16] medical evidence, and …. [6.13] Occupational Health Psychology, as useful book on prevention …. [7.8] Preventing and Managing Workplace Bullying and Harassment, as useful book …. [7.6] prevention, intervention and …. [7.1]–[7.34] books, useful, on prevention …. [7.6]–[7.13] facts, assessing …. [7.17] links, finding …. [7.18] organisational level, prevention at …. [7.5] structural gaps, finding cultural gaps and …. [7.18] regulation of …. [2.1] repeated behavior, meaning …. [1.1], [2.8] risk to health and safety, meaning …. [1.1] sick leave, commencing, after making allegation of …. [6.12] stress and …. [6.12]–[6.15] stress leave, handling …. [6.15] unethical behaviour, NAB as example of organisation’s response to …. [7.2] unreasonable behaviour, meaning …. [1.1], [2.8] what is …. [1.1] what is not …. [1.5] work health and safety laws, and …. [2.2] workers’ compensation and …. [2.3], [6.11], [6.14]

workers, who are …. [2.7]

C Capacity coherent workplaces, characteristics of …. [5.3] Coherence organisational procedures, of …. [5.3] psychosocial safety climate, and …. [5.4] Companies domestic, and changes in work conditions …. [5.3] global, characteristics and escalation of workplace bullying …. [5.2] Complex trauma symptoms of …. [3.16] Conciliation conferences Fair Work Commission, processes of …. [8.5] Confidentiality orders Fair Work Commission, power to make …. [8.7] Costs orders Fair Work Commission, power to make …. [8.14] Criminal law workplace bullying, and …. [2.4]

D Dark Triad

personalities, of …. [4.6] individuals, managing …. [7.20]–[7.33] psychological contract, and …. [7.22] recruitment and …. [7.21] Dismissal employees, of, for bullying conduct …. [2.13] Fair Work Commission, of application by …. [8.12] procedural matters …. [2.13] Small Business Fair Dismissal Code …. [2.13] summary …. [2.13]

E Employees dismissal of, for bullying conduct …. [2.13] global companies, broader context and impact on working life …. [5.2] Employer person named in Fair Work Commission and, conflicting interests of …. [8.8]

F Fair Work Act 2009 anti-bullying provisions commencement …. [2.6] preliminary matters …. [2.7] reasonable management action exception …. [2.9]

commencement of anti-bullying provisions …. [2.6] remedies under …. [2.12] work, determining whether worker bullied at …. [2.8] Fair Work Commission Anti-Bullying Bench Book management action, examples of …. [2.9] release of …. [2.8] anti-bullying matters, special jurisdiction in respect of …. [8.1] appeal process …. [8.15] conciliation conferences …. [8.5] confidentiality orders …. [8.7] costs order, power to make …. [8.14] dismissal of application …. [8.12] employer and person named, conflicting interests of …. [8.8] hearings …. [8.6] jurisdiction …. [8.3] special, in respect of anti-bullying matters …. [8.1] orders …. [8.11] contravening …. [8.13] power to make …. [2.12] prerequisites to making …. [8.10] outcomes, possible …. [8.9] parties, three, to one dispute …. [8.8] powers, interaction with work health and safety laws …. [2.11] processes of …. [8.4]

role of …. [8.1]–[8.15] what is …. [8.2]

G Group conflict mobbing, and …. [4.15] motivations behind, and pathways to bullying …. [5.16] tips for managing …. [4.16]

H Hearings Fair Work Commission, of …. [8.6]

I Intervention workplace bullying, prevention and …. [7.1]–[7.34] person who bullies, intervention for …. [7.4] planning interventions …. [7.14] reactive interventions, with individuals following complaint …. [7.3]–[7.5] target, intervention for …. [7.3] Investigation workplace bullying, of accuracy …. [6.7]

bias, avoiding …. [6.9] commencing …. [6.3]–[6.4] conducting …. [6.5]–[6.10] confidentiality …. [6.5] evidence emails, in …. [6.10] social media …. [6.10] taking …. [6.8] internal, external or …. [6.3] preliminary issues …. [6.3]–[6.4] purpose of …. [6.4] speed …. [6.6]

J Jurisdiction Fair Work Commission …. [8.3] special, in respect of anti-bullying matters …. [8.1] work health and safety laws, in respect of …. [2.2]

L Leadership ethical, and support for anti-bullying …. [5.5] protecting oneself, as leader …. [5.10]

M Machiavellian personality anti-social behavior and …. [4.9] caution, general, when working with individuals …. [4.14] concept of …. [4.9] managing high machiavellians …. [7.29] negotiating roles with high machiavellians …. [7.31] personality, motivations and pathways to bullying …. [5.12] promotion, advancement and …. [7.31] tips for dealing with bullying personalities …. [4.13] Management action Anti-Bullying Bench Book, examples of …. [2.9] Fair Work Act, reasonable management action exception …. [2.9] reasonable …. [1.5] Mobbing group conflict and …. [4.15] motivations behind, and pathways to bullying …. [5.16] tips for managing …. [4.16]

N Narcissism caution, general, when working with individuals …. [4.14] grandiose …. [4.8] high levels, managing …. [7.23]

motivation, strategies and …. [4.8] normal …. [4.8] personality, motivations and pathways to bullying …. [5.13] promotion and …. [7.27] psychological contract, and …. [7.26] recruitment and …. [7.24], [7.25] tips for dealing with bullying personalities …. [4.13] traits, attributes and …. [4.7] upside, risk and …. [7.28] vulnerable …. [4.8]

O Orders Fair Work Commission, of …. [8.11] contravening …. [8.13] power to make …. [2.12] prerequisites to making …. [8.10]

P Personality behavioural choice, interpersonal responsibility and …. [4.3] Dark Triad …. [4.6] individuals, managing …. [7.20]–[7.33] psychological contract, and …. [7.22]

recruitment and …. [7.21] machiavellian anti-social behavior and …. [4.9] caution, general, when working with individuals …. [4.14] concept of …. [4.9] managing high machiavellians …. [7.29] negotiating roles with high machiavellians …. [7.31] personality, motivations and pathways to bullying …. [5.12] promotion, advancement and …. [7.31] tips for dealing with bullying personalities …. [4.13] motivations, and pathways to bullying …. [5.11]–[5.16] narcissism caution, general, when working with individuals …. [4.14] grandiose …. [4.8] high levels, managing …. [7.23] motivation, strategies and …. [4.8] normal …. [4.8] personality, motivations and pathways to bullying …. [5.13] promotion and …. [7.27] psychological contract, and …. [7.26] recruitment and …. [7.24], [7.25] tips for dealing with bullying personalities …. [4.13] traits, attributes and …. [4.7] upside, risk and …. [7.28]

vulnerable …. [4.8] psychopathic personality, subclinical …. [4.10] caution, general, when working with individuals …. [4.14] employed …. [7.33] managing …. [7.32] personality, motivations and pathways to bullying …. [5.14] recruitment, advancement and …. [7.32] tips for dealing with bullying personalities …. [4.13] sadism, everyday …. [5.15] structures and processes, interaction of …. [5.8]–[5.9] supervisor case example …. [5.8]–[5.9] targets, personality profiles of …. [4.11] tips for dealing with bullying personalities …. [4.13] workplace bullying and …. [4.5]–[4.12] Psychological health barriers to understanding psychological injury …. [3.2]–[3.5] bias, unconscious, against complaining employees …. [3.5] complexity, managing …. [3.2] culture, attitude and …. [3.3] entrapment, by toxic workplace …. [3.4] bullying depth of psychological injury, and …. [3.14]–[3.34] development of psychological injury, and …. [3.1] model work, health and safety legislation, recognition by …. [2.2]

workers’ compensation, and compensation for psychological injury …. [2.3] Psychosocial safety climate (PSC) assessment tools, for psychosocial risk management ASSET …. [7.12] Job Content Questionnaire (JCQ-2) …. [7.11] Psychosocial Risk Management Excellence Framework PRIMA-EF …. [7.13] The Health and Safety Executive UK (HSE) …. [7.9] Work Positive …. [7.10] hierarchy of control …. [7.15] organisational coherence, and …. [5.4] work characteristics, and impact of …. [5.6]

S Social psychology conceptual system human …. [3.9] sense of self, development of …. [3.8] trust, basic, and fundamental assumptions …. [3.7] Subclinical psychopathic personality caution, general, when working with individuals …. [4.14] employed …. [7.33] generally …. [4.10] managing …. [7.32] personality, motivations and pathways to bullying …. [5.14]

recruitment, advancement and …. [7.32] tips for dealing with bullying personalities …. [4.13]

T Targets of bullying coherence, sense of, as protective factor in …. [4.12] personality profiles of …. [4.11] Teams work, at, autonomy and roles in …. [5.7] Transparency coherent workplaces, characteristics of …. [5.3]

W Work at work bullying …. [2.10] meaning …. [1.1] healthy self, at work …. [3.6]–[3.9] Work health and safety laws Fair Work Commission powers, interaction with …. [2.11] fundamental principles …. [2.2] jurisdiction in respect of …. [2.2] regulators, complaints to …. [2.2] workplace bullying, and …. [2.2]

Workers’ compensation psychological injury, compensation for …. [2.3] workplace bullying, and …. [2.3] workplace bullying. See also Bullying anti-discrimination law, and …. [2.5] at work, bullying …. [2.10] best practice procedures in dealing with …. [6.1]–[6.16] Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice, as useful book …. [7.7] complaint reactive interventions, with individuals following complaint …. [7.3]–[7.5] receiving …. [6.2] no further action, when employee requests …. [6.2] criminal law, and …. [2.4] definition …. [1.1] discrete issue, as …. [2.1] dismissal of employees, for bullying conduct …. [2.13] eliminating, proactively …. [6.16] intervention, prevention and …. [7.1]–[7.34] person who bullies, intervention for …. [7.4] planning interventions …. [7.14] reactive interventions, with individuals following complaint …. [7.3]–[7.5] target, intervention for …. [7.3]

investigation accuracy …. [6.7] bias, avoiding …. [6.9] commencing …. [6.3]–[6.4] conducting …. [6.5]–[6.10] confidentiality …. [6.5] evidence emails, in …. [6.10] social media …. [6.10] taking …. [6.8] internal, external or …. [6.3] preliminary issues …. [6.3]–[6.4] purpose of …. [6.4] speed …. [6.6] legal risk and …. [2.1]–[2.14] variety of sources of …. [2.14] managers, and role of …. [7.19] managing …. [6.1]–[6.16] medical evidence, and …. [6.13] Occupational Health Psychology, as useful book on prevention …. [7.8] Preventing and Managing Workplace Bullying and Harassment, as useful book …. [7.6] prevention, intervention and …. [7.1]–[7.34] books, useful, on prevention …. [7.6]–[7.13] facts, assessing …. [7.17]

links, finding …. [7.18] organisational level, prevention at …. [7.5] general considerations on …. [7.16] structural gaps, finding cultural gaps and …. [7.18] regulation of …. [2.1] repeated behavior, meaning …. [1.1], [2.8] risk to health and safety, meaning …. [1.1] sick leave, commencing, after making allegation of …. [6.12] stress and …. [6.12]–[6.15] stress leave, handling …. [6.15] unethical behaviour, NAB as example of organisation’s response to …. [7.2] unreasonable behaviour, meaning …. [1.1], [2.8] what is …. [1.1] what is not …. [1.5] work health and safety laws, and …. [2.2] workers’ compensation and …. [2.3], [6.11], [6.14] workers, who are …. [2.7]