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Harriet Stacey - Wise Workplace - Pain Points – recognising the difference between performance management and bullying

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Harriet Stacey delivered the presentation at 2014 Workplace Bullying Conference. …

Harriet Stacey delivered the presentation at 2014 Workplace Bullying Conference.

The Workplace Bullying Conference 2014 focused on the effects of the legislative changes to date and on implementing practical policies and programs for bullying prevention.

For more information about the event, please visit: http://www.informa.com.au/workplacebullyingevent14

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  • 1. The difference between reasonable management action and bullying NEED A SPECIALIST – ENGAGE AN EXPERT
  • 2. Workplace Bullying Fair Work Act s.789FD(1) According to FWA Workplace bullying is: “repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety” The definition expressly excludes: “Reasonable management action undertaken in a reasonable manner”
  • 3. 3 elements - reasonable management action Behaviour must be management action (MA) It must be reasonable for the MA to be taken It must be carried out in a reasonable manner
  • 4. Key Question……………………………………. “HOW DO WE DETERMINE IF MANAGEMENT ACTION IS BEING USED TO BULLY SOMEONE OR IF IT IS REASONABLE?
  • 5. Ms SB[2014] FWC 2104 (12 MAY 2014) CC Complaint against C3 Respondent to C3 in FWC NP Complaint against C3 Respondent to NP &CC Applicant C3 HR Respondent to FWC C3 FWC
  • 6. • The making, acceptance and investigation of complaints • Failure to prevent ‘false’ complaints recurring • Ongoing malicious rumours and lack of support from the employer • Being harassed and badgered by CC • CC documenting the applicants conduct, and • Humiliation caused by rumours as employer did not notify employees as to the outcome of the complaints. Behaviour cited as bullying
  • 7. FWC states that the assessment of whether action is reasonable management action ( RMA) is: An Objective assessment of the action in the context of the circumstances and knowledge of those at the time. Including: • Circumstances that led to the MA • Circumstances whilst the MA is being taken • Consequences that flow from the action It may be relevant to consider the state and psychological health of the worker
  • 8. Could the MA have been undertaken in a manner that was more reasonable or more acceptable? It doesn’t have to be perfect! The question is NOT:
  • 9. Consider overall circumstances of the case: Restructure 2 camps - one supportive another critical FWC Ruling
  • 10. 1. Investigation of the 2 complaints by NP and CC Not unreasonable: The only reasonable and prudent response”
  • 11. 2. Was the making of the allegations unreasonable? No, but a lack of evidence to claim that the allegations were part of a campaign of bullying
  • 12. 3. Failure to provide support to applicant FWC stated that employer could have done more to offer support but not unreasonable under the circumstances.
  • 13. 4. Rumours in the workplace and failure to investigate complaint against applicant regarding conduct at Christmas party. There was a lack of evidence to link CC to the rumours. Decision not to investigate complaint was reasonable as there was no substance to the complaints
  • 14. 5. Failure to properly investigate complaints made by applicant regarding CC in the external investigation. Not unreasonable to conduct external investigation General manner of investigation was not unreasonable
  • 15. Commissions findings Management actions were reasonable Individuals actions were limited, commission not satisfied that the behaviour created a risk to health and safety Applicant not bullied
  • 16. Case two
  • 17. Case two overview • Complaints spanned a 22 month period from a month after MM arrived and PjO resigned; • 11 allegations with 20 particulars; • 9 particulars were unable to be sustained; • 11 particulars sustained; • PjO was diagnosed with post traumatic stress disorder, stress and anxiety symptoms included shingles and hair loss whilst in post.
  • 18. Case two Project officer complainant Sn Manager Middle Manager
  • 19. • Good working relationship between PjO and SnMg prior to arrival of MM; • Quickly developed difficult relationship between PjO and MM; • PjO’ personal issues – sole parent in OS location, sick parent in home country Key elements
  • 20. Issues subject of complaint • Leave management • Tasks beyond the abilities of the PjO • Performance management
  • 21. Challenges to the investigation • Ill health of complainant • Respondent was overseas in workplace reluctant to participate • Protracted duration of investigation – 8 months • Investigating events that allegedly occurred 2 years previously – difficult to gather reliable evidence • Failure of respondent to keep basic records of performance management, difficult conversations even when disputed at the time • Witnesses had left organisation and unwilling to participate with investigation
  • 22. Was it reasonable management action? Issue One: MM sought to undermine relationship between PjO and SnMG: • Moving PjO desk away from SnMg • Stating “you get on with him now but that can change” • Stating “your not to talk to him unless I’m present” Determined by investigator that this was reasonable management: why? • Context of action and comments • Organisational need for management lines to be observed • Evidence of SnMg giving contradictory information to PjO and MM
  • 23. Issue two Limiting leave to no more than 2 week blocks and failure to authorise leave within a reasonable time. • PjO advised that she could take no more than 2 weeks off at any one time; • Referring to PjO’s child - MM stated “can’t you give it to it’s father!”; • Failure to approve leave to take care of sick father in a timely manner. Investigator determined this was UNreasonable management action:
  • 24. Issue two Why? • Considering OS secondment, sole carer responcibilities, ability of team to negotiate cover; • Insensitive commentes regarding the child ( insufficient evidence of the facts); • No explanation provided by MM as to reason for delay in approving leave Taking acocunt of the whole context of the case Unreasonable MA
  • 25. Performance management commenced due to inability to deliver on a project outside of PjO capabilities. • Compelled to agree to undertake project; • Failure of MM to provide support when requested; • Unrealistic timeframes imposed; • Performance management commenced for failure to perform on project. Investigator determined this was UNreasonable management action Issue three
  • 26. Why? • No requirment in job decription or selection criteria for PjO to hold the skills required for this task; • No agreement by PjO that she could compelte the task in the timeframe at any point; • Generally recognised that PjO did not possess the skills; • Generally recognised that the timeframes imposed were unreasonable even for someone with the necessary skills; • No support provided by MM or SnMg; • Existance of external factors that delayed the project; Under whole circumstances Unreasonable management action. Issue three
  • 27. Case three: • Complaints spanned a 24 month period • Hosptital setting involving shifts And a christmas party!
  • 28. Case three: • 4 respondents, 4 allegations 29 particulars (3, 16, 5, 5 per person) • 28 particulars were not sustained – reasonable management action • 1 particular sustained, minor isolated incident – not bullying
  • 29. EN Complainant Respondent 1 RN Respondent 4 NM Respondent 2 Education officer Respondent 3 NUM Case Three
  • 30. Involved: • Poor performance • Excessive sick leave • Included complaints of failure to investigate complaints Case Three
  • 31. The Story • The complainant was under supervision of education officer (R1). • Performed work with a backdrop of various periods of sick leave and return to work restrictions for various unconnected injuries • Breakdown in relationships following R1 raising concerns with complainant over complaints of performance by doctors.
  • 32. The story • R1 had failed to give her right of reply to complaints of poor performance from 7 Dr’s • R2 was seeking complaints from Dr’s • R3 unfairly placed her on supervision, refused to allocated shifts and discussed her performance with other managers and Dr’s • That her managers R3 and R4 failed to investigate complaints made by other Drs
  • 33. Was it reasonable management action? The investigator determine , mostly ….YES!
  • 34. Original complaints from Dr’s • One Dr had sent email with a complaint • Other Dr’s had only made verbal complaints, never formalised • R1 failed to keep notes of complaints • R1 failed to keep notes of meetings with C • No. of complaints was disputed and lack of evidence of complaints from Dr’s
  • 35. Triger event C was required to do further assessment as a result of these complaints. The Investigator determined: This was management action BUT it was not reasonable to take the management action: • Lack of complaints • Lack of notes • Lack of procedural fairness
  • 36. Subsequent complaints All other complaints were considered reasonable management action
  • 37. Subsequent complaints • Failure to accommodate uni hours in roster • Phone calls whilst on sick leave • Seeking complaints from Drs • Refusing to allocate weekend shifts • Failure to investigate complaints
  • 38. reasonable management action vs Bullying Behaviour must be management action (MA) It must be reasonable for the MA to be taken It must be carried out in a reasonable manner
  • 39. Reasonable management action does not need to be perfect but ..… it is contextually different from bullying
  • 40. NEED A SPECIALIST – ENGAGE AN EXPERT