Bullying, the Law and the Building Industry 3

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Thursday, May 12th, 2016
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The building industry is overrepresented with alpha males. With this comes talk that is plain and often blunt, assertive, sometimes acerbic and discourse can be expletive laden.

When this disposition takes root, it creates a culture that can enable bullying and is at odds with the more sanitised communication modus operandi  required in the modern work force.  For some reason, there are pockets within the building industry comprising those whom consider themselves to be a special case; this is the residue of a bygone era. Unless hostile site vernacular, delivery and demeanour that is all too commonplace undergoes some fairly drastic communication reengineering, employers in the building sector can anticipate a tsunami of bullying claims.

Many employers in the building industry, in particular small to medium enterprises, are not on top of workplace law and underestimate the exposure that exists both at corporate and senior managerial level. As a result, bullying claims are on the rise according to workplace relations construction lawyer Sean McCarthy, who advises employers on work place policy and cultural re-engineering within the building sector.

McCarthy warns that the “awards for damages being handed down by the courts for bullying claims are increasing and some awards are of such financial magnitude that they have the potential to ‘bankrupt’ corporations” and further states that “employer organisations have to get on top of work place law in order to to establish and maintain work place regimes that are immunised against bullying and moreover must have in place means by which work place incidents are managed and resolved.”

What is bullying?

The Australian government Fair Work Ombudsman website has a working definition of bullying and lists several examples, which include:

  • Behaving aggressively
  • Teasing or practical jokes
  • Pressuring someone to behave inappropriately
  • Excluding someone from work related events
  • Unreasonable demands

The Fair Work Commission has also published information that helps define the word bullying as when “a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety.”

Section 789FD of the Fair Work Act 2009 states that a “worker is bullied when the worker is at work” and “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.”

The provision does not apply “to reasonable management action carried out in a reasonable manner.”

The definition traverses a very broad terrain of human interaction, so it pays to have very close regard to the variety of ways by which one can be considered to be a perpetrator of bullying and a victim of conduct which is characterised as bullying.

Bullying can be “lateral” (co-worker to co-worker) or “vertical” (junior or subordinate members of staff can bully those in higher office.) An example of vertical bullying would be a failure to comply with a reasonable managerial directive and then becoming obstreperous with the senior. “Descending” is the most common paradigm, and this is where a a senior member of staff bullies a junior.

There is a mounting body of case law on bullying. One case that should make employers and managers sit up and take pause is the case of Swan vs Monash Law Book Co-operative [2013] VSC 326 (26 June 2013).wor

Supreme Court Justice John Dixon handed down a decision where $600,000 in damages was awarded against the respondent in circumstances where a protracted period of workplace bullying spanning over some years ended up having a deleterious psychological impact upon the claimant. The respondent, the bookshop, was supported by part-timers and volunteers and was a non-profit organisation. The plaintiff was employed part-time as a salesperson and was under the supervision of a part-time manager.

Over a period of a few years, the employee communicated misgivings about management to the Board, but the Board did not afford sufficient gravitas to the complaints. Furthermore, she had committed her grievances to writing and relayed then to the Board.

Justice Dixon was persuaded that there had been a paradigm where bullying incidents had occurred between 2003 and 2007. The behaviour was characterised as belittling and demeaning, and the Justice found that a pattern of disparaging remarks “imposed substantial emotional stress and distress and that this threatened to and did damage mental health and  well being.”

Justice Dixon was not persuaded by the argument that because the organisation was a non-profit organisation, staffed by part-timers, it lacked sufficient critical mass to deploy prudent managerial HR practice. He observed that the “conduct had fallen short of the expected standard of an employer.”

In particular, the Judge found that:

  • There were no “defined procedures for complaints of inappropriate behaviour”
  • “The board was negligent in failing to follow through any employee assessment that included consideration of appropriate workplace conduct”
  • A reasonable employer ought to have directly investigated what was occurring ..and intervened appropriately
  • The defendant had no formal system of enabling employees to seek assistance of the employer when bullying occurred; there was no complaints mechanism or system, and there was no simple clear statement to the manager that the organisation would not tolerate bullying behaviour.

In addition, Justice Dixon found that the employer did not carry out any “risk assessment” monitoring, the net effect being that the “risk of injury to the plaintiff was uncontrolled by the board.”

Tellingly, the Judge found that “absences of overt continuing behaviour or complaint about behaviour, is not evidence that the risk of harm to the plaintiff’s mental health identified in March 2003 had abated, or could reasonably be considered by a prudent employer to have abated.”

This statement is both instructive and laden with gravitas in that if an employer thinks that a failure to have addressed a workplace incident in circumstances where there is a subsequent lull or lengthy period of ostensible calm means that legal liability has dissipated then the employer is very misguided. A period of calm or “atmospheric equanimity” after an unresolved incident cannot be used as evidence that a bullying incident has been resolved and dealt with.

There are a number of lessons that have to be learnt from this case. First, there must be professionally crafted contracts of employment. There must be clear job descriptions. There must be sophisticated and best practice work place polices in place and there must be bona fide and proper investigation procedures for the resolution of work place conflict, incidents or altercations and allegations of bullying.

The incident response procedures need to be implemented  and followed up, rather than there in paper but “missing in being actioned.” The responses have to be genuine, which at the very least will involve the hearing of the complaint by management, the investigation of the complaint and a determination made with respect to the complaint which may involve warnings, undertakings to desist and or conflict resolution meetings to restore professionalism and dignity to the work place.

If representations are made to act, then action must occur. Justice Dixon was underwhelmed by the respondent’s representations that matters would be investigated and action taken, when in fact nothing of substance occurred.

Justice Dixon made a very telling statement that should serve as a salutary warning to employers or corporations who adopt a ‘Pontias Pilate’ approach to workplace relationship management and work place conflict resolution when he said “the employer is under an affirmative obligation to actively consider amelioration of a risk of injury and cannot abrogate that responsibility to its employee.”

In other words, it’s not good enough for an employer to contend that matters of human resource disquiet or conflict are “end cycled” with the manager when indeed the employer – be it a corporation, board or partnership – has been made aware of unresolved workplace issues that involve the manager. The responsibility in such circumstances goes up the line and can implicate those up the line.

Legal relief for bullying

An employee can file a claim with the Work Safe Commission, which has the power to compel mediation. If the mediation is unsuccessful, the matter can be referred to a formal hearing. The Commission also has the power to issue bullying stop orders.

Work safe authorities can be contacted, and in circumstances where a doctor has assessed a bullying victim as having been psychologically harmed by bullying, a work safe medical certificate can be issued.

Common law damages can be sought under the guise of an adverse action and the damages can be very sizeable.

Were an employer to terminate a bullying victim’s contract of employment in circumstances where the victim was on work-related stress sick leave, the employer could be sued for unfair dismissal and the damages would be aggravated.

How to deal with a bullying claim

The employer should have a workplace incident response procedure. If the employer does not have workplace policies and protocols on point, then after reading this article he or she should immediately engage a lawyer to prepare same.

McCarthy, who used to be a builder and understands building industry workplace dynamics, has devised an incident response procedure that he uses for guidelines for employers (with modifications to suit differing working situations.)

The procedure dictates that the person who is nominated as the HR operative:

  • Meets with the victim
  • Takes notes and records the date and nature of the alleged instant of bullying
  • States that the matter will be investigated with the view to generating a finding or determination
  • Procedural fairness and natural justice will then dictate that the respondent (the person whom has been accused of bullying) is afforded the right of reply and the opportunity to be heard
  • After hearing both parties’ views, the investigator will meet with both to advise of the finding, be it a finding of exoneration or an affirmation that there has been a bullying incident
  • In circumstances where bullying is established, the investigator would then pursuant to the workplace protocols state exactly how the matter is to be resolved or what type of reprimand and undertakings should be forthcoming
  • The protocols should also state that the future conduct of the perpetrator will be monitored to ensure that there is behavioural change.

McCarthy said “procedures need to be crafted in tandem with employers having close regard to best practice workplace guidelines so that they understand the rigour and responsibilities that help enable modern workplace management.”

Right now, bullying in the building industry is a hot topic in Australia and the law on bullying is evolving faster than systemic change in many employer organisations operating in the building sector. There still exist too many recalcitrants who consider their “potty mouths”  to be a badge of honour and are proud of their intimidating bravado and demeanour. Admittedly, impressionable troglodytes within their fold may be impressed, but from a legal perspective, such individuals place those around them in the modern workforce in harm’s way.

Unless organisations are able to, and are seen to be taking appropriate steps in the “rehabilitation” of these Jurassic renegades, then the employer will be held accountable and McCarthy’s warnings will gain currency.

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Discussions
3
  1. Tim Pine

    This is a good article, Kim. It is pleasing to see light being shone on such an important issue.

    One of the best ways in which we need to combat this problem is through raising awareness about exactly what bullying is and why this is not acceptable. Whilst some people set out to be bullies, I would think that there would be many others who would not realise that their behaviour is, in fact, that of a bully.

    Another thing we need is leadership at the top. This means not only leadership from those who manage companies but political leaders as well. In this regard, there have been a number of examples of late which have been extremely disappointing. Take for example, the way Kevin Rudd used to treat his staff. The way Clive Palmer told employees those who got active in supporting him politically would receive favourable treatment in terms of employment. How Geelong's mayor Darren Lyons acknowledges that he has used foul language toward junior council staff but says that's OK in the context of 'robust discussion'. How on earth do you expect those within construction companies to know how to treat their co-workers/subordinates/employees/bosses with due respect when these are the kind of examples our political leaders set?

    Bullying will never be stamped out in the workplace unless that which political leaders take part in is called out for what it is.

  2. Sean McCarthy

    Tim
    Thank you for your comments. I couldn't agree more, particularly with the observation that "robust discussion" might well be more than that, as it is entirely based upon the perception of the recipient as well. Kim rightly points out that the alpha male prevalence in the industry breeds a mentality of "toughing it out", and this can be seen in may shapes and forms: the treatment of younger apprentices; inherent risks that people take on site; and the way people treat each other. I have a good many stories from my days on site (prior to law), and even treatment on site as legal counsel – I'll always recall when I was confronted by a very agitated concrete contractor on one site, and when we ascertained that I was unable to assist him with his plight (because I was effectively representing the other side), he said "That's fine mate, I'll just negotiate the way we concreters normally negotiate!"

    The culture needs to change, and it will take some courage by leaders to initiate. Thank goodness we have some protection by virtue of the anti-bullying laws. It's a good start.

  3. Barry b.

    Fine article Kim – thanks for drawing attention to an endemic problem in Australia's building sector.