In today’s article we highlight why failing to investigate workplace bullying allegations will often have serious ramifications for the employer, and ultimately your employees as well.
Employers have a positive obligation to provide a safe workplace and must act appropriately when faced with allegations of workplace bullying. This includes conducting a timely and thorough workplace investigation. Sadly for this employee, her employer’s inaction led to years of unnecessary and unreasonable exposure to a hostile work environment.
The employer was a second-hand book co-operative based at prominent Victorian university. As a not-for-profit organisation composed of a combination of volunteers and employees, and governed by a Board comprising of student and ex-students, their inaction may have been explained, but certainly was not excused, by their unique circumstances.
The First Incident
In 2003, the employee first made the Board aware of the “conflict” she was experiencing with her manager. Her concerns included apparent hostility, rudeness, sarcasm, violent behaviour, threats of termination and a lack of consultation. At the time, the Board characterised the behaviour as “bullying” and that there were a number of workplace defects they could address. This included providing written employment contracts outlining specific role descriptions of employees and introducing workplace policies regarding appropriate employee behaviour, none of which would be forthcoming. Despite the Board’s concerns, they were instructed by the employee to “sit on it” as she was certain she was able to manage her moody and aggressive manager.
The Second Incident
In 2005 the employee again confided in the Board that she was increasingly exacerbated by her manager’s behaviour. Unfortunately for the employee the Board again promised that contracts and policies would be instigated. Again, these documents were not forthcoming.
The Final Incident
In 2007, after 5 years of shocking behaviour, the tensions between manager and employee came to a head. Following a heated exchange regarding the position of certain books behind the counter, the employee was told by her manager to leave and find a different job. She contacted the Board and they were finally spurred to action to instigate a workplace investigation.
The Court was particularly scathing of the employer’s inaction over the 5½ year period. Not only did the employer fail to investigate its employee’s complaints, it failed to provide clear job descriptions, employment contracts or workplace policies and failed to initiate even the most basic of responses to the allegations of workplace bullying.
Had the employer acted on its own impulse at the first instance, it was likely that the situation would have never escalated. The Court found that the workplace bullying experienced by the employee was typified by:
- No credit for her ideas or suggestions
- Snapping responses to her questions instead of reasonable answers
- Regular sarcastic or condescending comments directed at the employee
- Use of offensive language in the employee’s presence
- Unreasonable nitpicking and providing menial tasks
- Violent behaviour
The cumulative effect of this behaviour was to victimise, intimidate, humiliate and undermine the employee and exert control over her. None of the complained of behaviour could be reasonably characterised as proper, appropriate or reasonable management practice.
Lessons for Employers
Bullying behaviour, when viewed in isolation as individual events, can appear innocuous. This perspective is dangerous, particularly for employers, who have a legal obligation to investigate serious workplace misbehaviour. As such, investigating allegations as soon as bullying is complained of, or even suspected, is crucial.
Skirting difficult decisions or avoiding immediate action by relying on the choices of compromised or confused employees can be costly, with employers running the risk of falling short of the level of conduct expected of a reasonable employer.
For this employer a just on $600,000 award of damages was a catastrophic outcome for a situation that could have been prevented by having effective HR procedures in the first place.
The pressure on employers to investigate any report of workplace bullying will only magnify once the new workplace bullying laws come into effect on 1 January 2014.
 Swan v Monash Law Book Co-operative  VSC 326 (26 June 2013)