The Federal Workplace Bullying Inquiry has been told Australian workers are getting soft and will litigate by the truckloads if new workplace bullying laws are introduced.
'In every decade, there is a buzz word for some activity or malady within the workplace. In the 1980s, it was repetitive stress injury. Today RSI is barely heard of. Is workplace bullying therefore merely a passing fad?' So wrote Gerard Phillips, a partner at law firm Middletons, in the Australian Financial Review on 22 August.
While Phillips thinks the workplace bullying debate is an attack on 'managerial prerogative and control', I've met at least a dozen people who say they have lost their jobs and former lives as a result of being bullied at work.
One woman, aged in her 60s, had much of her small coastal town, including the local doctor, turn on her when she made a bullying claim against her employer. She shows me a psychiatric assessment which concluded that her workplace bullying had caused her nightmares, memory loss, paranoia and chronic anxiety, and that despite having had no psychological conditions prior to the bullying, she would not be well enough to work ever again.
She thinks about suicide all the time — 'I even thought about it on the way to this interview.' She becomes so distressed during our meeting that she begins a wheezing: she has developed asthma since the bullying started.
In 2011, Victoria became the first state to criminalise bullying following the death of café worker Brodie Panlock. Now Federal Workplace Minister Bill Shorten has given every indication that national workplace bullying laws will follow once the Government's workplace bullying inquiry concludes in November.
Many workplaces and employer groups say more regulation will lead to more complaints, more litigation, more costs, lower productivity and a culture where a worker cannot be legitimately disciplined without crying 'bully'. However, the evidence is that effective regulation will actually reduce levels of workplace bullying.
Just look at France. It has the most comprehensive workplace bullying laws in the world, and its workplace bullying levels are among the lowest reported in the OECD.
The development of French workplace bullying law stems from psychoanalyst Marie-France Hirigoyen's 1998 book Moral Harassment: The Perverse Violence of Everyday Life, where she defined moral harassment as 'psychological violence that produces effects for the health until it creates an authentic work-related illness'.
The French began an intense public discussion about acceptable workplace behaviour, and eventually a new article was introduced into the French Labor Code that protected employees from 'repeated actions ... constituting moral harassment' that 'deteriorate their working conditions' and are 'likely to violate their rights and dignity, impair their physical or mental health, or jeopardise their professional future'.
Note, too, Queensland, which has a highly regulated psychological-injury prevention program. The state even employs psycho-social safety inspectors to assess work areas and advise management on how to make the environment more psychologically conducive.
The number of psychological injury claims declined sharply after the increase in government regulation, risk analysis and workplace education. Queensland also has the lowest rate of psychological workplace injury compensation claims in the nation.
The devil is in the regulatory detail. What sort of regulation do we need? How will we know it is working? What are the risks? What do we regard as 'bullying' and what do we regard as mere workplace 'cut and thrust'?
These are complicated questions involving complex human interactions. As Dr Sara Branch, research fellow at the Key Centre for Ethics, Law, Justice and Governance at Griffith University, told the parliamentary committee:
The term 'bullying' has the potential to be used as a weapon against others in the workplace ... so there is a risk for the grievance system to be misused and used as a tactic to bully others in the workplace, with the performance review system also potentially used in the same way. And yes unfortunately it has got to the point where the term bullying has almost become the signifier of all the ills within our workplace.
There may be a fine line between robust performance management and workplace bullying, but international surveys have repeatedly shown Australian managers fail international benchmarks when it comes to the treatment of their people. Bullying might be subjective, but research consistently shows around a quarter of Australian workers say they have been bullied in their current job — more than twice the level in France.
On the other hand, if workers were happier with the way workplaces were handling the bullying issue, this debate would never have arisen. 'Treat us well and we will do good work for you' — it's a simple proposition which many employers still fail to understand.
Luke Williams is a freelance journalist who is studying law at Monash University in Melbourne.
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28 August 2012
This is a very good article with strong evidence to back up the author's points. Bullies in the workplace are essentially thugs who detest civility. in one situation with which I am familiar, a worker constantly swore, screamed and shouted at another worker, eventually causing the other worker to collapse. When reported to the employer his response was to propose an independent investigation. A good way to put off having to deal with the issue!! The employee resigned. Hopefully this article will be read by that and other employers. Well done.
28 August 2012
Maybe the reason RSI and OOS are not heard of so much these days is that the campaign resulted in better equipment and workplace regulation, for example more breaks from repetitive tasks. Workplace bullying like RSI is a health hazard and that's why it needs to be legislated. Workers should not be going home to their families in a worse mental state than when they arrived, otherwise other social problems will arise. Workplace education, legislation and workers standing together against bullying are all part of the solution.
28 August 2012
There is understandably a lot of emphasis on bullying by bosses. For several years I was subjected to behaviour by one of my staff that amounted to harassment and bullying. She behaved similarly with other staff members. I called in a psychologist/media and arranged a weekend staff conference. Eventual this was a significant factor in me deciding to retire. One of my successors with less history to worry about had her moved sideways into another group.
28 August 2012
The Wallabies, the dummy spitting members of the Olympic team, the overpaid football players of all codes, helicopter parents, the modern politician, the Australian cricket team, precious little tennis players and the poor darlings who find work too demanding - NATION OF OLD-FASHIONED SOOKS.
28 August 2012
Well said, Mr Williams.
Bullying in the workplace is a serious issue, and Gerard Phillips is mistaken to believe that it should be part of “managerial prerogative and control”. He also appears to be ignorant of the fundamental changes that occurred in the office workplace (e.g. ergonomic furniture, ensuring frequent physical breaks from keyboards) which have reduced (but not eliminated) the incidence of RSI.
Bullying has no place in a civilised society and should not be confused with effective supervision. Bullying is undermining and destructive, whilst performance management can be supportive and constructive whilst still ensuring problems are dealt with properly. There is a wide body of published literature (to which I have contributed) demonstrating the negative impact of bullying on the health of those bullied, and in the medical workplace, of patients. This is serious stuff!
There is certainly a need to prevent vexatious claims against managers, and the objective and positive experience from France, Queensland(?) and elsewhere should be noted. Nonetheless, managers need to be trained – yes, trained – to deal with performance management in a constructive manner. Many managers simply have no idea that what they do is demeaning and psychologically harmful (“this is the way my father/mother/previous boss etc. treated me, so I’ll do the same”). Others (so-called “office psychopaths”) deliberately abuse their workforce so that they get their own way either through deception or more active bullying. Ironically, the negative impact of bullying on morale has an equally negative impact on work output. There is no reason why ‘workplace “cut and thrust”’ cannot be respectful, even when an employee is being taken to task. There is no reason whatsoever for workplace bullying to be accepted.
28 August 2012
An excellent article and well-made points - thank you, Luke. Please pass on thanks to your brave female interviewee. It is interesting to hear that a partner in a law firm is objecting to the legislation. If litigation did increase dramatically then surely his firm would do well WITH the new legislation! But then, he is a senior employee/employer in a very competitive and conservative field of work and by virtue of that, just the kind of workplace prone to bullying because bullies seem to 'get results'. (His attitude to RSI is disparaging and dismissive, and he seems oblivious to the impact new OH&S measures have made in workplaces.) Me thinks the lady doth protest too much, and perhaps what Mr Phillips calls "managerial prerogative and control" might be called bullying in many ordinary people's books.
28 August 2012
Well, RUTH, I can tell you new OHS laws have not prevented individual workplace contracts putting me at risk of RSI - as I am writing now, I am taking a break from my task, thereby eating into the time I need to reach the productivity quota I am contracted to with my employer. I am entitled to an hour lunch break but if I take that, I can't reach my quota.
If only by boss and supervisors did blatantly and openly bully me, life would be so much simpler. But the bullying these days is more subtle, passive, creeping.
28 August 2012
I am prepared to give you the benefit of the doubt, but are you, Dr Frawley, truly equating those with a hyper-inflated sense of entitlement with those who suffer from bullying in the workplace? Or did you simply want to demonstrate the way that language can be used to demean?
28 August 2012
I think the French, a sane and civilised nation, have found a way to address the problem sensibly. Ditto Queensland. John Frawley's (mainly) sporting analogies seemed inappropriate. I think, in many ways, we tend to be a contentious people, with a bad "win at all costs" philosophy. I think we need to learn to work together better.
28 August 2012
I'm still not convinced that people are bullied as much as what they say they are.
Look at all the Workcover bullying complaints which are found to be baseless.
28 August 2012
Thanks for the "update", Aurelius, on your RSI - OH&S may have significantly improved the levels of RSI in the workplace but not, as Patricia put it, eliminated it. And indeed, I agree from personal experience that bullying is frequently sly and 'under the radar' and thus more intimidating, more shaming, and harder to demonstrate. Contract employment is far more common than it used to be and it is sad that it means less worker protection one way or the other. (I do casual teaching and even there one is aware of keeping employers onside - and the reality that you'll be the first to be blamed if, for example, a student you appropriately managed ends up later being suspended.) And it will be interesting to see whether this new legislation can offer much real protection for those in a potentially precarious situation of contract employment.
28 August 2012
Great article, sensible points. But workplace bullying is not subjective, for the targets it is very much an experienced (i.e., objective) phenomenon. The hoopla regarding managerial prerogative is just nonsense - it is largely the mangers' incompetence which allows bullying and derivative harm to flourish in the workplace. Therefore I need to disagree with Frawley, it is the managers that are spineless sooks who often have no guts to face up to the issue and take responsibility for the well-being of those who they are meant to lead in the workplace. Managers (should) understand their teams well, and if they possess good skills and knowledge will quickly see effects even if they don't observe the actual bullying which has created such effects. Successful management is much about intuition, empathy, fairness, respect, openness, civility and trust. Take these away and what is there that remains? An unsafe, manipulative, insecure, partisan, secretive, suspicious, rule-bound and survivalist work environment. Managers can create both of these environments! Of course, we know which of the two would be more likely to breed WPB.
28 August 2012
Thank you, excellent article, Luke.
I would certainly welcome the opportunity to speak to Mr Phillips about this so called "softness", the cavern that sometimes exists between "robust performance management and workplace bullying" and his ignorance.
When did it become a prerequisite for an employee to have 'balls of steel' in order to endure long term abuse without suffering the effects?
Every claim of workplace bullying may not be genuine, however, I believe the frivolous and less severe cases are weeded out very early on. The vast majority of Workcover claims are denied in the first instance, with virtually no possibility of litigation eventuating.
The trouble is all claims are treated as frivolous by Workcover and there is next to no chance of anyone but the injured being held accountable with the abusers and their often enabling employers left unscathed.
29 August 2012
John Frawley's analogy is fine if that's the accepting playing field. But as we all know, it's the bosses, middle management controlling the purse strings who cowardly know the people under them probably won't push back when they are pushed - not because they are "sooks" but because they have bills to pay and children's mouths to feed.
But I'd be fine with bullying if people with attitudes like Frawley were prepared to cop it on the chin too.
31 August 2012
I belong to a generation when bullying was part of life both in the home by elder brothers, in the English public and grammar schools with the English "fagging" system, in the Army with N.C.O.'s bullying new recruits to turn them into "Real soldiers". This is enirely un-acceptable in the modern world.
Good industrial relations in the work place comes from co-operation and good conditions.
Even in New Testament times Christian masters did not bully their slaves, but could consider themselves brothers and sisters in Christ
08 September 2012
Can you provide evidence that 'international surveys have repeatedly shown Australian managers fail international benchmarks when it comes to the treatment of their people'
10 September 2012
Having a well defined policy and procedure designed to prevent, detect and resolve workplace bullying is one thing. Given that workplace bullying is a complex issue requiring complex solutions, it seems that causal factors are put in the too hard basket and become the sacred cows that one dares not talk about. Unfortunately, whilst there appears to a decrease in psychological claims, it also appears based on anecdotal evidence that those being targeted live in fear of job loss. They appear to have a tendency to discuss their situation with persons external to their organisation for fear of being targeted, victimised or further bullied. It also appears that those being targeted are taking to social media and media sites to vent their feelings about workplace bullies and toxic workplaces. Despite the existence of Codes of Practice, performance management systems and processes, and discipline processes, targets still perceive that workplace bullies are being rewarded. Given the rate of change, uncertainty about job security, lack of communication and consultation regarding job futures, individuals still perceive that the changes are creating a work environment that is conducive to workplace bullying.
10 September 2012
At the same time, individuals perceive that lodging a WorkCover claim that mention either stress or bullying in the same sentence amounts to being further targeted. As Dr Branch has indicated, there is always potential for a grievance system to be misused. However, that Court, Commission and Tribunal decisions are continually making decisions regarding how the initial complaint was or was not investigated, and the changes that are occurring through the harmonisation of WHS across Australia, officers and workers should be well versed in not only the workplace bullying policy, but also a range of workplace relations policies and procedures, as well as other legislative and common law options that might be available in resolving workplace bullying. It is important to change workplace cultures and in particular those that tolerate workplace bullying to the point where it is accepted.
19 September 2012
Targets, victims and witnesses of bullying have a few avenues to pursue (as compared with victims of sexual harassment) when subject to repeated and obvious acts of aggression, spreading malicious rumours, excluding someone socially or from certain projects, undermining or impeding a person’s work or opinions, insulting a person’s habits, attitudes, or private life and intruding upon a person’s privacy. Others include being rude or belligerent, destroying property, assaulting an individual, or setting impossible deadlines. Although bullying is recognized as detrimental to occupational health, there is little political or corporate interest in stopping it.
In schoolyard bullying, the bullies are children, whose behaviour is controlled by the leaders, i.e. the school administration. In workplace bullying, however, the bullies are often the leaders themselves, i.e., the managers and supervisors. Therefore, reporting a bully to the HR dept, for example, may expose the target/victim to the risk of even more bullying, slower career advancement, or even termination, on the grounds of being a “troublemaker!”.
Workplace bullying has severe consequences, including reduced effectiveness and high employee turnover. An employee who suffers any physical or psychiatric injury as a result of workplace bullying can confront the bully, report the bully to the HR department or to the trade union, if any, or bring a claim of negligence and/or a personal injury claim against both the employer and the abusive employee as joint respondents in the claim. If the law does not persuade employers to deal with workplace bullying, the economic reality will persuade them. Training sessions can help when combined with a con?dential reporting structure, but it is difficult to alter the basic nature of some individuals, who may need counselling.
02 November 2012
Fantastic article! Thanks Luke!!