What is the difference between bullying and harassment?

Whilst neither bullying nor harassment should be tolerated in the workplace, many employers often fail to see or acknowledge the difference between the two, and effectively, they often tend to deal with both matters in the same way. 

Bullying can be identified by its repetitive nature; it is unsolicited and irrational behaviour towards an individual or group of employees that results in a risk to health and safety. It is the responsibility of an employer to ensure the safety of the workplace and prevent bullying from occurring, as failure to do so may result in investigation and prosecution.

Harassment on the other hand is also unsolicited behaviour that may demean, upset or intimidate a person, and victimizes them through such behaviour on the basis of their physiognomies such as sex or ethnicity.

Bullying expert and author of Bully Free At Work, Valerie Cade, explains that bullying has “the intent of hurting someone else”, whilst harassment  “violates people's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment".

Cade also provides some key identifiers on the difference between bullying and harassment:

•     Harassment is intrusive and invasive and, has a very physical aspect to it including disrespecting a person’s space and/or damaging their possessions
•     Harassment is recognizable by its explicit nature
•     Harassment can be inclusive of aggressive and offensive language
•     Victims of harassment are usually aware of the injustice being done towards them
•     Victims of bullying may not recognize such injustice that is being done towards them until the damage is done
•     Bullying is more likely to be concealed and to occur in private, where it cannot be seen or witnessed by fellow employees
•     Workplace bullying is often psychological. 
•     Bullying is often linked to staged attacks on individuals

When dealing with harassment, policies should be implemented to ensure positive resolution for all parties involved, and protects the relationship from suffering in the workplace. Bullying on the other hand requires immediate action via policies that eliminate the source of bullying and prevent it from recurring. Whilst there may be cases in which a victim of bullying wishes to avoid reporting the issue, the responsibility of an employer according to their workplace health and safety obligations, is to investigate and reconcile the issue, and prevent them from recurring.

To minimize your risk as an employer, you should consider developing proactive bullying and harassment policies that will ensure that your workforce is safe, engaged and productive. Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.

How to Investigate a Bullying Claim

Workplace bullying is a serious, and very real issue that requires attention and care to prevent and deal with any cases that may arise. Failure to implement procedures to prevent and address bullying in the workplace can put employers in danger of breaching OHS policies and the Fair Work Act.

Implementation of workplace policies is the first step in prevention of bullying; such policies should be thorough, and must outline the standard of behaviour expected of members of the workplace. 

Implementation of policies to all new and existing members of the workplace is crucial; they should be discussed in meetings and frequently submitted for review to guarantee functionality and effectiveness.

It is vital that an employer deals with issues of bullying at their immediate awareness as failure to do so can contribute to risk of health and safety in the workplace. 

Employers may look to either internal or external sources to investigate a bullying claim; regardless, it is important that the selected investigator is well trained, has a proper understanding of procedural fairness and any associated legal issues. External investigators are usually the go-to for a serious claim, where as an internal investigator may be more useful for more minor issues, or in cases that need to be dealt with more promptly.

Investigation should be used for:

•          Ongoing reports
•          In any case where a threat is involved
•          Cases where multiple employees have been reported
•          Where an informal, early intervention approach has not solved the issue.

An investigation needs to assess the issue and find a resolution. The appointed investigator should be neutral to both parties; they should determine what allegations will be tested and how the process will take place, including prospects to be interviewed and the overall timeline. Professionalism of the investigator is a must, as is objectivity in examinations, sufficient time allowance, consultation with relevant witnesses, informing all involved parties of possible investigation results and outcomes, fact based conclusions, set up of private hearings from all parties and documentation of facts.

To ensure fairness and efficiency of investigation it is crucial the respondent is made aware of

·         reports against them

·         investigation processes to be executed

·         possible consequences,

and:

·         has an opportunity to seek advice or representation

·         is provided with the opportunity to reply to complaints

·         is kept confidential and,

·         informed of how they may submit a review of the outcome.

The investigator must report on the accusations made, processes undertaken, evidence discovered including interviews and a conclusion of whether the case of bullying may be validated.

Further action should be taken if necessary, and outcomes should be communicated gently to the respondent. 

Contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies and dealing with bullying claims for your business.

Changes to Bullying Measures in the Fair Work Act - 1 Jan 2014

Under the Work Health and Safety Act 2011, employers are obliged to take all reasonably practicable steps to manage health and safety risks in their workplaces.  Bullying is one such health and safety risk, and failure to manage and prevent bullying could constitute a breach of the Act and could have serious repercussions, not just for those bullying or being bullied, but for your organisation as a whole.

As from 1 January 2014, the Federal Government will introduce new federal anti-bullying laws which are designed to stop workplace bullying promptly.  However, the laws do not give bullying victims an entitlement to monetary compensation or reinstatement of their position.  From 1 January 2014, a worker who is being ‘bullied at work’ or believes they have been bullied at work will be able to apply directly to the Commission for an order to stop the bullying.

These new laws will cover contractors, subcontractors, outworkers, apprentices, trainees and students gaining work experience as well as volunteers.

Under the new provisions, a worker can bypass his or her employer and lodge a claim directly with the Commission. The Commission is required to deal with an application within 14 days after the application is made - the time limits will mean an employer will have very little time to investigate, assess, and respond to a claim. Under the new laws, employees can formally require the Fair Work Commission to order employers to take action against bullying colleagues and managers. The FWC will have the power to issue an order to the alleged bully or bullies, to put a stop to the disputed behaviour. 

With the introduction of these new laws, it is essential that an organisation has an effective workplace bullying policy which includes:

1. a definition of workplace bullying, including a statement that workplace bullying is unlawful;

2. a complaints process; and

3. information about the consequences for a worker who has engaged in workplace bullying.

Bullying is defined as follows:

A worker is bullied at work if 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. 

It is irrelevant whether the individual or individuals who are bullying intend to bully the victim.

It is important to note that bullying involves repeated unreasonable behaviour. An isolated incident is insufficient. 

Importantly, the definition has retained the exemption for reasonable management action which is carried out in a reasonable manner.  (A performance assessment/review that you disagree with will not constitute bullying!) 

Bullying can include more obvious and overt behaviours, such as: 

•                    intimidation

•                    verbal abuse

•                    assault

•                    physical aggression/violent behaviour

•                    spreading rumours about someone

•                    constant name calling

•                    practical jokes

•                    harassment/sexual harassment,

•                    trolling on social media.

But bullying can also include behaviours such as:

•                    constant unjustified criticism or complaints

•                    constant threats to sack or demote

•                    excluding someone from workplace activities

•                    inconsistent and arbitrary enforcement of rules

•                    setting unreasonable timelines

•                    deliberately changing work arrangements in order to inconvenience someone

•                    setting tasks that are unreasonable

•                    excessive scrutiny of work performance

•                    withholding information or tools required to perform work, and

•                    taking credit for another employee's work and failing to acknowledge that employee.

Examples of the sorts of orders the Commission may make include:

•             regular monitoring of behaviours by an employer;

•             compliance with the employer’s workplace bullying policy;

•             provision of information by the employer;

•             additional training to employees; and

•             amendment of the employer’s workplace bullying policy.

What will this mean for Employers?

It would be expected that employers' processes for handling complaints about bullying will be in the spotlight. Therefore, over the next few months until 1/1/2014, it will be important that employers use the time remaining to review and improve their policies and framework regarding bullying. 

Businesses should ensure that performance management and investigation processes are fair and reasonable.

They should have appropriate policies that detail the action taken when an employee makes a grievance or complaint about bullying behaviour, and appropriate mechanisms in place for addressing concerns of workplace bullying.  All employees should have a copy of the policy, or at least know where and how to access the policy.

In the event of an application to the FWC, any workplace investigations conducted will be open to scrutiny. You must be able to show that you have acted with fairness. Organisations may also need to prove that they have given employees training or guidance in relation to their policy, so all employees are aware of what they need to do if they think they are being bullied.

Cyberbullying in the Workplace

According to Industrial Relations tribunal statistics in Australia, workplaces are experiencing increasing claims of bullying and cyberbullying, and the problems of cyber-bullying are only expected to increase over time.

Many businesses and companies would typically have current workplace policies for internet and email usage, harassment, racism, and discrimination, however, few would have a specific Bullying and Cyber-bullying policy in place.

Employers have a duty of care under the Workplace Health and Safety Act ‘take all reasonably practicable steps’ to provide a working environment that is healthy, safe and without risks to the health of employees, contractors or other persons in or near the workplace. Australian courts have demonstrated that an employer’s common law duty of care to employees encompasses not just their physical well being but extends to their psychological mental and emotional well being as well.

Cyber-Bullying is a relatively recent workplace issue, and is on the increase with the increased prevalence of take-home laptops and smart phones, making cyber-bullying a problem outside of the physical work environment and traditional working hours.

Cyber bullying is often defined as a form of covert bullying that is carried out through the use of technology. Examples of what constitutes cyberbullying include :

• Offensive, malicious or intimidating emails or SMS communications
• Email threats, malicious or threatening comments
• Posting blogs and comments on social networking sites
• Spreading lies, malicious gossip or falsely discrediting others on blogs or social networking sites, or via email to other employees
• Sharing a person’s private data online
• Sharing embarrassing, offensive or manipulated images or videos of an individual
• Screen savers or desktop backgrounds featuring offensive content.
• On Line Harassment & Cyberstalking: repeatedly sending offensive messages and/or the posting of racist, nasty and hurtful comments using electronic means;
• Identity theft
• Exclusion, deliberately excluding another from an online group, mailing list or electronic conversation.

The nature of the internet is that it is not possible to guarantee that any content published or transmitted can be erased, removed or corrected. Cyberbullying therefore has the potential to be more aggressive and escalate considerably faster than traditional methods of bullying because of the immediacy of the medium. It is important that employers recognise that addressing cyberbullying is essential for creating a safe and productive working environment.

Cyberbullying can seriously affect morale, cause undue fear and stress, emotional exhaustion and serious health and psychological issues with employees. This can result in productivity drops, absenteeism rises, staff turnover increases, morale slumps and difficulty retaining staff in an unhealthy work environment. Cyber-bullying is a serious matter for businesses because its effects on the psychological health of victims can be far reaching, lasting and more damaging that from the traditional physical bully.

Employers who recognise the significance of cyberbullying and take it seriously will be in a much better position to avoid the negative consequences and potential legal implications of incidents. Being proactive and introducing or amending workplace policies that are specific to Cyberbullying is highly recommended.  It is recognised that the best way to prevent cyberbullying is through policy, education and training of all levels of employees.  Your policy should cover or include areas such as:

• acceptable use of technology,
• how to deal with bullying in the workplace,
• give concrete examples of what constitutes cyberbullying,
• remind staff that anything posted on the internet is out of their control and is potentially there forever
• encourage staff to draft sensitive emails and re-read them a few hours later before sending them.
• Develop a reporting and investigation process for bullying and cyber-bullying- any reports of bullying made by employees - regardless of how incidental they may appear initially - must be investigated
• Set out the consequences for engaging in bullying or cyber-bullying behaviour.

To help minimize your risk as an employer, or to find out more about Cyberbullying, contact Annette at End2End Business Solutions on (02) 8977 4002 for advice on establishing workplace policies for your business.