Bullying is unacceptable in any workplace. According to a report for the Royal Australasian College of
Surgeons, “discrimination, bullying and sexual harassment affect not only the individuals who are subjected to these behaviours, but also the healthcare teams who witness or are part of them, and patients whose safety is risked as a result of them.”1
So much is clear, and uncontested. Equally clear is that even in a harmonious workplace, people do not always agree all the time, there can be performance issues, and people have bad days and different working styles.
Bullying, as defined in the Fair Work Act, involves behaviour that is:
- unreasonable; and
- creates a risk to health and safety.
Whether behaviour is unreasonable is determined objectively, having regard to all the circumstances. It does not include reasonable management action carried out in a reasonable manner; for example, responding to poor performance, necessary disciplinary action, and directing and controlling the way that work is carried out.
A recent decision of the Fair Work Commission illustrates the kinds of issues that can arise in healthcare workplaces. The case, involving staff in a medical centre, helps to clarify the distinction between workplace tensions and bullying in a legal sense, and may help guide appropriate responses.
A perception of bullying
In this case, the applicant raised concerns about a number of actions by various staff members, which she categorised as aggressive, rude, disrespectful, and which made her feel uncomfortable.
The specific instances she mentioned to the commission included a compliment paid to another staff member; other staff coming into the reception area, which she interpreted as checking up on her; a supervisor not agreeing with her suggestion about communicating with the team; and senior staff not responding in a friendly manner.
Some performance issues seem to have been raised with the applicant, including asking her to follow office policy, speaking to her about being late to work, and asking her to return to the reception desk when it was left unattended. The commission found the applicant’s evidence unconvincing.
Behaviour that may seem unobjectionable to the alleged offender can still fall into the category of bullying when considered in the context of a modern and culturally diverse workplace.
In the above case, the commission noted that “any application of alleged bullying is inevitably…highly contextual”. The commission went on to point out that “the legislation does not provide for an applicant’s self-belief or self-conviction to trump all other factors.
“An applicant’s perspective must be balanced against the conduct of others, including reasonable management action carried out in a reasonable manner…anti-bullying provisions are to protect against bullying behaviour, not substantially a person’s feelings.”
In this case, the commission was not satisfied that the alleged conduct constituted bullying, and the applicant conceded that there was no risk to her health and safety by returning to work.
Key tips for managing workplace issues
- Have dispute resolution processes in place and make sure these are fair to all concerned. Seek advice if you have any doubt about what ‘procedural fairness’ requires.
- Maintain ongoing communication with staff (eg through regular meetings), don’t wait for a problem or performance issue to arise.
- Be alert to signs of conflict (such as changes in communication, increased sick leave absences, complaints) – and seek help if you need assistance in resolving conflicts.
- Act early – issues can escalate quickly so do not ignore problems when they first occur.
- Encourage and support staff to resolve conflict with their colleagues in the workplace as informally as possible before the situation escalates.
We often assist practices and members to understand the distinction between reasonable performance management, poor performance management, communication issues and bullying in the legal sense.
Behaviour may not constitute bullying but may still be unreasonable and an employer may be required to take some action to stop it. Even if conduct is not bullying, disputes within a workplace can still be distressing, and difficult and time-consuming to resolve.
It is important for practices to have ways of managing disagreements and conflict within the workplace to help achieve a positive work environment and avoid disputes escalating.
The Australian Medical Association in each state offers a range of dispute resolution services, policies and resources, depending on the nature of the conflict.
Organisations such as Beyondblue also offer resources to help resolve conflicts and promote mentally health workplaces.
This article was originally published in Australian Doctor. Read the article here.
1Expert Advisory Group on Discrimination Bullying and Harassment advising the Royal Australasian College of Surgeons: Report to the Royal Australasian College of Surgeons, 28 September 2015, p.4.
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