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Preventing Bullying at Work video transcript

For: Employers and managers Information seekers

Video transcript of presentation given by John Kovacic, Deputy President, Fair Work Commission at Comcare's Mental Health Community of Practice in December 2019.

View the video of John Kovacic's presentation.

Thank you very much, everyone. One of the benefits of being the last speaker is not only did you get the insights into what everyone else says and you're able to sort of structure your comments to accordingly, one of the disadvantages in perhaps being the last speaker is that for many of you today, I stand between you and lunch.

Coming back to the first issue, I think one of the observations that I'd make is firstly that the commission's role in this space, to use the language that David just used, falls pretty much into that consequence management framework sort of dimension. So, quite often when bullying applications actually come to the commission, it's at a stage of the process where the parties, to use the language that we use in the commission, have been at it for a while and haven't been able to work through the particular issues or resolve the particular issue. So, sometimes the degree of difficulty, the degree of complexity, all the water that's flowed under the bridge makes resolution particularly difficult.

I'd also say that a lot of the things or many of the things that each of the speakers that preceded me this morning resonated very much with me. There's one particularly sort of aspects of David's presentation in terms of some of the points that he touched on in terms of the importance of the interpersonal relationship, dimension, communication, also the assertiveness and building that capability in terms of people, and sort of creating I suppose a psychologically safe environment are all, I think dimensions that, sort of in what I've seen in terms of willing applications, had some of those sorts of qualities been in place it may have helped the people to actually resolve the issues, particularly difference.

And just to highlight, I suppose an issue in terms of the importance of communication, and it wasn't in respect of a bullying application it was an unfair dismissal application. It was a case of a lady that worked in a public sector agency. She had been dismissed largely because she'd taken some leave, unapproved leave, but the circumstances leading to her was that her daughter was getting married and from a cultural perspective it was a really important... Oh, it was her daughter was getting engaged, sorry, rather than married. And from a cultural perspective, it was a really important event in the family's life. It happened to coincide with a particularly busy time at work and also a change in supervisor.

Unfortunately in those circumstances, the individual didn't feel comfortable enough to speak to the supervisor and tell her the circumstances why she needed to leave, which hadn't been approved by the supervisor because of the operational requirements. And ultimately things out and the individual was dismissed, as I mentioned. The matter came before me as an unfair dismissal application and I still recall the supervisor in tears in the witness box, sort of 'Had I known that the reason the person wanted to take leave was for this particularly important family event, I would have approved the leave, we would have found a way.' Just the failure to talk led to really dire consequences for everybody.

And I see that quite often in the bullying matters that come before me, just that failure to talk at the same level. And again, something that David touched on sort of around providing a message and ensuring that the message is understood. And quite often that sort of is where the overlap in terms of performance management issues, which are a common dimension in many of the bullying matters that I've had to deal with, where people just don't accept that they're not performing.

And that sort of is perhaps the tip of the iceberg to use a language that's also been used this morning, that's built on the things that have gone beforehand where for whatever reasons issues have been let slide. Someone comes in and says, 'I'm actually going to take this issue on and deal with the issue.' And then it comes to a head and many occasions it manifests itself in a bullying application. So I say those things by way of introduction and the things I'm going to focus on more particularly is to give you some insights in terms of how the commission deals with bullying applications when they come to us, but also some of the resources that are available not only for employees but also for employers in the bullying space. And I'm more than happy to take some questions after that.

As Cilla mentioned earlier this morning, the commission's jurisdiction in the bullying area only commenced on the 1st of January, 2014. The legislation that gave effect to that jurisdiction flowed from the then government's response to a house of representative standing committee inquiry into bullying, which basically said that there was a gap in the mechanisms that were in existence or in operation to deal with bullying, which was primarily in the work health and safety space, as was mentioned earlier today.

And their intention was for the commission to have the capacity to deal with bullying applications and it being a vehicle to deal with applications or issues relating to bullying in a quick, speedy, and potentially informal approach and with a view to getting people back to work as promptly as possible and normal working relationships resume as much as is possible. So that's the context in which the bullying jurisdiction came into existence for the commission.

Now, the slides earlier this morning sort of touched on a number of these, so I'll skip over those. Just one point I will actually make, in terms of the issue of, what bullying is at work? There are the two themes the worker needs to have been bullied at work, but also there needs to be the ongoing risk to health and safety. One point that I would make is that that risk in terms of health and safety needs to be real, not hypothetical or conceptual in terms of reality, so that's an important dimension that I think I would mention in terms of the jurisdiction.

In terms of our process, one of the things that... In terms of implementing the jurisdiction, we've adopted a very different approach to dealing with bullying applications from the way that the commission deals with other applications and that is a reflection of, I suppose the emotional nature of many of the matters at hand, the issues to be determined, the ongoing nature of the working relationships and the psychological issues that frequently accompany bullying applications.

So what happens, and this is a flow chart of the process, as it operates when it comes to the commissioners initially the application is received and then what happens is it's allocated to a particular case manager and that person makes contact with the applicant. And one of the things that is really important in part of that process is explaining the process to the individual. Quite often the individual is in a potentially heightened state of anxiety, worried about the whole thing, really doesn't understand the process as many of the applicants that we see are self represented. So it's an explanation of that, but it's also telling them that their application will be shared not only with the employer party, but many often, occasionally you'll see, or frequently you will see a number of supervisors, peers, colleagues mentioned in an application that the application will be shared with those persons.

One of the things that's really important as part of that particular stage of the process is also to actually get a sense of the individual and the state that they're in. So if they're in a highly agitated state and there's a risk of self harm or there's a concern of their well being, there may be a reference to an appropriate authority. I know of one occasion where there was a concern that the individual would self harm and we got in touch with the appropriate authorities and it's about sort of trying to make sure that the person is particularly safe.

Once that's done, the documentation is shared with the other parties and the case manager will prepare a report for our national practice leader within the commission, who at this stage is Commissioner Hampton who's based in Adelaide. Commissioner Hampton will then allocate the file to a particular member and the member will initially deal with it by way of a conference. And that conference is, largely an informal process which really tries to bring the parties together. It's designed to try and understand the issues but to try and get to a mutually agreeable resolution at that stage of the process. Now that might entail a number of conferences, and conferences themselves can be a form of mediation, conciliation, a mixture of the both. And the rationale there is that when the parties come up with the solutions themselves or own the solutions, the likelihood of success of those solutions is going to be more enduring than one that's might ultimately be imposed by a member of the commission.

If, however, that process of conciliation and mediation doesn't result in a resolution of the matter, the matter is then set down for a more formal hearing. And that's the sort of traditional sort of, I suppose the courtroom sort of antics where parties file outlines of submissions, evidentiary material, which would be a witness statements, so on and so forth. You have the full blown hearing, witness evidence is given in the witness box, whether it's under oath or affirmation. And ultimately the member of the commission needs to maker a decision in respect of whether firstly, bullying has occurred. And in those circumstances, if the threshold requirements, whether it's appropriate to make an order to prevent bullying.

So the approach, as I say, is very different from our normal matters. It's very much about trying to get a speedy gathering of the parties and working with them through informal mechanisms to try and get to a resolution and do that as quickly as possible and avoid, I suppose the stress, and also the delays don't necessarily flow with a more formal determinative process that the commission would normally sort of ultimately have to deal with if those informal mechanisms don't sort of succeed.

Now the next few slides really sort of go through that in a more detailed sort of way. So I said it was initially the four stages, so really the first three are all designed about that sort of informal resolution and ultimately a hearing. Now, quite often what you see in the conferences is, the parties will... An applicant will quite often sort of come to the view, 'Well I understand now that my concerns don't necessarily relate to bullying there might be other issues.' Quite often the parties come to a view that the employment relationship is so fractured that it can't be put back together again. What I describe as the Humpty Dumpty scenario, and I actually then have a conversation which is about agreeing to go their separate ways. And that has been an outcome in many cases and that enables individuals to get on with their lives in a way that they feel particularly comfortable with and move on from the experience.

Now as was pointed out by Cilla in particular, the commission, this jurisdiction doesn't enable the commission to award financial compensation, but sometimes the parties think, 'Well, we're better off actually agreeing to go our separate ways.' And then in those circumstances the application falls away because the threshold requirements for the commission to issue an order fall away in the sense that there's no ongoing risk to the health and safety of the individual.

In terms of what the commission can and can't do, I think what I would sort of stress is that the nature of, or the purpose of an application is to... The commission member can issue an order to prevent the worker from being bullied further. And it's really about that prevention of further bullying of the applicant. However, that doesn't mean that the commission can stop processes. So to the extent that there might be a performance improvement process in place, or conversations around performance, or alternatively one that's another common sort of features where a code of conduct investigation may be underway. The purpose of the bullying application or an audit of it is not the stop those sorts of processes, those processes actually continue.

Secondly, and another important thing and I see it many times when you get an application, that an individual actually wants to commission to investigate their particular circumstances and what's happening in the organisation. And that's not something that the commission is there to do, it's really to contemplate whether it's appropriate to make an order and whether the prerequisites for making an order exist in terms of the circumstances at play.

As I mentioned a moment ago, the commission can't issue fines or penalties, can't award financial compensation in respect of bullying application. So that sometimes from some individual's perspective is an important dimension that they... When that becomes clear to them well they think, 'Hmm, maybe this isn't the place for me.'

In terms of the sorts of orders and remedies which the commission can make, the commission can make any order it considers appropriate other than an order in terms of financial compensation, as I said a moment ago to prevent the worker from being bullied. So some of the sorts of things that have been ordered is requiring an individual or a group to stop particular behaviour. It might involve regular monitoring of behaviours by the employer, could include things such as the provision of additional support and training to workers. There's one that I dealt with earlier this year where, as we went through the process of conciliation it struck me that the individual that made the application was getting different in strict instructions from team leader and the more direct sort of 2ic.

And what struck me is that there was an agreement within the team what its purpose was, what direction it was going because there conflict between the team leader and the 2ic. And that process, ultimately you sort of... The resolution there involved the team as a group working through what might be best described as a pretty sort of common sort of business planning sort of process to try and generate some commonality in terms of views around that as a way forward. And also some clarity about who would provide direction to the individual concerned in that particular case and that resulted in an amicable resolution of the situation.

Indeed other orders might be in review of the employers bullying policy or indeed putting in place a bullying policy. Public sector organisations by their very nature are fairly sophisticated in this space. But when you're getting into the private sector, the area in particular small businesses, the luxury of policies is not something... Well, what they consider to be the luxury of policies is not something that many small businesses are really au fait with.

In terms of the commission's resources, I think one of the areas that I'd mentioned is and just to provide some context, about two thirds of the applications, in a general sort of sense, that come before the commission are individual-based matters. So unfair dismissals, general protections applications, bullying applications, and the other third are collective matters. So disputes about bargaining and so on and so forth.

And increasingly in respect of those individual matters, you have persons that are representing themselves and their familiarity with the commission, with the framework of the Fair Work Act is in many cases, zero. So part of our initiatives or the commissions initiatives is to enable those self-represented parties, provide assistant in terms of those self-represented parties being able to put their best foot forward.

One of the ways that we do that is through the workplace advice service, which is largely access for eligible individuals and businesses to legal advice around particular matters. And that's provided by a number of law firms that provide pro bono advice, but also by community legal centres and other community organisations that operate in their particular space. At the moment, the service is available in New South Wales, Victoria, Western Australia and Queensland, but the desire of the commission is to roll it out more broadly in collaboration with the various partners that we're working with.

Focusing more particularly on the bullying, the commission has a dedicated web page to be anti-bullying jurisdiction and in terms of that particular material, there's a whole range of material. So there's a fairly detailed guide that is targeted both at individuals and it goes, how to make an application, it has videos which are available on YouTube about what happens when you make an application, how to go about making an application, when your application comes before the commission, what you can expect, it's targeted... there's material there specifically directed at the employees as well as employers. So it's very useful source of information. And just to give you a sense of... There's a series of videos up there and they range from the commission's role in stopping bullying, what is workplace bullying and how to deal with workplace bullying, how to make an anti bullying application, and how to respond to an anti bullying application and how bullying matters are resolved, among others.

The other document that I wanted to mention too is the anti-bullying bench book and the commission produces bench books, they're designed to assist parties lodging or responding to, in this case any bullying applications under the act, and it's really to assist them in preparing material for an appearance before the commission.

So in terms of the sorts of issues which the anti-bullying bench book deals with, again on a topic such as what is workplace bullying, who is covered by the laws, when is a worker bullied at work, making an application, and it not only provides factual information about that, but in respect of some of those issues we'll also refer to particular cases and authority so that the individual can actually look at ones where a decision has been, well this is bullying, this isn't bullying so they can actually make some judgement calls as to how that fits their circumstances and so on and so forth. And quite often when it gets to the hearing stage in particular, you will actually see parties' submissions reflecting things taken from the bench book. It's a really particularly useful resource for people and the web page itself is a really, really helpful sort of resource.

That's all I was going to cover. Perhaps one last observation that I would make, is in terms of I suppose an important consideration is where issues, whether it's under the heading bullying or on term more broadly about individuals' conduct in the workplace, I think and important I mentioned in addressing those is the need for speed. I mean I mentioned in my opening remarks is frequently when they come to the commission it's very well down the path and in some respects and on occasions it's almost too late to get the parties and to put it back together again.

So it is really critical that organisations deal with those sorts of issues as promptly as you can. I've seen investigations in some cases take six months and it just means that people are left in limbo, the issues are left to fester. And what happens during that six month is that there is also a vacuum in terms of people being kept informed of where things are up to. Now, there may be legitimate reasons why it takes six months, it might be that there's a whole range of people that need to be discussed, spoken to or interviewed, whatever. But it's the vacuum that sometimes arises.

So I think if I was to say one thing, the need for speed is I think really critical in terms of organisations responding to these particular things. The other thing I just would acknowledge is your role in terms of where you sit in organisations is quite often you'll be the eyes and the ears of where particular pockets or particular issues might manifest themselves. And how you actually sort of perhaps alert other people, it may be an issue over here, or it may be an issue with, whether it's a supervisor or an individual or whatever it might be, maybe resourcing or it may be workload pressures because you're getting inundated potentially, or you're getting sort of issues raised with yourselves. We're seeing it through a number of workers' compensation claims. It's about joining the dots and you're in a position where that dimension is quite often overlooked. So I just encourage you to wherever you can join the dots, I'll leave it there.

Page last reviewed: 15 March 2020

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