Summary
- All complaints regarding harassment and bullying should be treated as serious and hence should be considered as quickly as possible to prevent further discourse within the workplace.
- When investigating a complaint ensure that you document EVERYTHING through written record of any witness statements, personal accounts of events, and communication between parties to the dispute.
- ClinLegal operates to protect and support Healthcare Practices. See the concise Guide: How to Investigate Complaints of Workplace Bullying & Discrimination, available online through the various packages.
BULLYING within the workplace is a serious issue that can disrupt the workplace environment and affect the service provided to patients and clients. Fair Work describes bullying as repeatedly behaving unreasonably towards an employee that creates a risk to their health and safety. Unreasonable behaviour includes actions that degrade, humiliate, offend or intimidate employees. Complaints of bullying by another employee are serious and should be investigated by the employer. However the case of Harris v WorkPac Pty Ltd [2013] FWC 4111 (“Harris v WorkPac”) warns that employers should not automatically assume that a person has been bullied because they felt embarrassed, humiliated, degraded or intimidated by another employee; there needs to be sufficient evidence to support the allegation. In the case of Harris v WorkPac, the Fair Work Commissioner was not convinced that the employer had obtained sufficient evidence to substantiate the allegations of workplace bullying. Harris v WorkPac Mrs. Karen Harris and Ms Rachel Maye were both employees of WorkPac Pty Ltd (“WorkPac”). In early December 2012, Ms Maye resigned from her position with WorkPac. Ms Maye indicated during her exit interview that her reason for resignation was that she had been subject to workplace bullying by Mrs. Harris. Ms Maye cited several incidences that had occurred during the month of July 2011, and October 2011, and June 2012. Mrs. Harris’ conduct included swearing and shouting at Ms Maye, making a complaint about Ms Maye’s work performance, and embarrassing and humiliating Ms Maye to the point where she felt that she had no option but to resign from her position. Ms Maye also stated that she had made a verbal complaint about the bullying behaviour prior to her resignation, but the complaint was not investigated.
Following the exit interview with Ms Maye, WorkPac took immediate action to investigate the bullying allegations. On 19 December 2012 Mrs. Harris was informed by WorkPac that she was required to attend a meeting the following day to discuss the allegations. Mrs. Harris provided a written and verbal response, denying the allegations. At 2:30pm on 20 December 2012, WorkPac told Mrs. Harris that her employment was to be terminated immediately due to gross misconduct. WorkPac stated that their investigation into the complaint made by Ms Maye found Mrs. Harris guilty of workplace bullying.
Mrs. Harris made a claim to the Fair Work Commission, seeking compensation for unfair dismissal. The commissioner was required to consider whether WorkPac had a valid reason to terminate Mrs. Harris’ contract of employment, and hence assessed whether the bullying allegations made by Ms Maye were substantiated based on the available evidence. ALLEGATIONS of work-place bullying need to be substantiated with evidence.
The commissioner found that Mrs. Harris had been unfairly dismissed from her employment with WorkPac, as there was not enough evidence for WorkPac to conclude that Ms Maye had been bullied by Mrs. Harris.
The Commissioner noted the inconsistency of stories between Mrs. Harris and Ms Maye regarding the alleged incidences of bullying and that neither Ms Maye nor WorkPac could provide any contemporaneous documentation of the alleged incidents. In addition, there was no written record of the investigation undertaken by WorkPac to indicate the reasons why WorkPac so swiftly concluded that Mrs. Harris was guilty of bullying Ms Maye. Critique was also made of the fact that the majority of incidents were alleged to have occurred 17 months prior to the investigation, and that the previous complaint made by Ms Maye had not been investigated while she was still a WorkPac employee.
Of significance, the Commissioner noted that while workplace bullying is a serious issue and complaints should be treated with caution, it does not mean that all incidences where an employee has been made to feel humiliation or embarrassment within the workplace will automatically indicate that the employee has been bullied. There must be sufficient evidence to support all allegations, and consideration must be given to all factors relating to the relevant employees. In this case, the Commissioner noted that WorkPac should have taken into consideration the fact that Ms Maye was described as ‘a sensitive person’ and that Mrs. Harris had lost her partner to a terminal illness during the time in which the incidents were alleged to have occurred.
Considerations for Employers:
COMPLAINTS regarding harassment and bullying should be treated as serious and hence should be considered as quickly as possible to prevent further discourse within the workplace and ensure that staff can continue to provide care and service to all patients and clients. WorkPac did not investigate or record the original complaint made by Ms Maye while she was still employed by WorkPac, which left her of the opinion that she had no choice but to resign. Had the complaint been investigated at an earlier stage by the employer, it may have been possible to resolve the conflict and prevent any further distress for both Mrs. Harris and Ms Maye.
EMPLOYERS of any workplace particularly that of a health Practice should ensure that an investigation into a bullying complaint is well documented as soon as possible and includes a written record of any witness statements, personal accounts of events, and communication between parties to the dispute. An investigation should be formalised with a written report of the investigatory process and importantly, clearly outline the evidence that supports the final decision made by the employer in regards to the allegations.
For more information contact [email protected] or visit www.clinlegal.com.au. See ClinLegal’s Policy on ‘Workplace Bullying’ as well as user-friendly Guides: How to Investigate Workplace Complaints and How to Investigate Complaints of Workplace Bullying & Discrimination.
This article was written by Rebecca Hyde, Workplace Compliance Advisor at ClinLegal in Adelaide. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).