K&L Gates’ Michaela Moloney and John Monroe advise clothing retailers on protecting themselves in cases of workplace bullying.
Since the introduction of the anti bullying jurisdiction in the Fair Work Commission (FWC) in 2014, the retail sector has consistently seen one of the highest rates of applications for orders to stop bullying.
There also continues to be large numbers of workers’ compensation claims being made from workplace bullying. It is vital that employers understand how to proactively deal with the risk of bullying in the workplace.
Bullying is defined in the Fair Work Act as repeated, unreasonable behaviour that is directed at a worker, or group of workers, and creates a risk to health and safety. It includes behaviour that would undermine, humiliate, victimise or threaten a person.
For most employers, workplace bullying is now well and truly on the radar. Most organisations have policies making it clear that bullying is prohibited in the workplace. While an anti bullying policy is essential in the workplace, a policy alone will not remove the risk of bullying.
Bullying is a work health and safety issue and needs be treated as such.
There is a duty under occupational health and safety law for employers to provide a safe system of work. Employees (including managers, supervisors and staff) must take steps to protect their own health and safety and that of others.
Key risk factors that may increase the likelihood of bullying include:
• small or isolated workplaces separate from head office e.g. branch operations
• workplaces employing young and/or inexperienced workers
• managers lacking leadership and people management skills
• confusion regarding role descriptions and who should be performing what duties.
These risk factors are particularly relevant to retail fashion businesses which often employ a junior work-force, promote employees internally and operate under branch organisation structures.
Regional branches (such as retail stores) are at greater risk of workplace bullying due to the lack of supervision from central management.
Without appropriate supervision, the culture in these workplaces can encourage unreasonable behaviour on the part of co workers that a local manager may not be equipped to deal with.
Where workplaces have a greater degree of independence, central management needs to ensure that all workers understand the standards of behaviour expected.
It is important that workplace behaviour is consistently monitored and immediately addressed where it falls below expected levels.
Where workers are more vulnerable it is important that employers take active steps to address the risk, including by:
• skilling up junior workers on what is expected in the store team environment, including acceptable and unacceptable behaviour team building activities
• recognising individual and team achievements
• providing an employee assistance program to support employees who may be suffering from workplace or external stresses.
A recent case found a clothing store manager to be in breach of the employer’s common law duty of care by undermining her employee, making derogatory comments about the employee in front of customers and deliberately excluding the employee from matters relevant to their role.
While managers are often technically skilled, employers must ensure that those with management responsibilities have appropriate people skills.
Training can be provided to managers on leadership styles and communicating effectively, all of which have been shown to decrease the risk of bullying.
The law makes it clear that reasonable management action does not constitute bullying.
It is therefore essential that managers and HR understand when management action will be considered reasonable. This applies in both formal and informal performance management.
A recent FWC decision held that employers must be able to show that putting an employee on a performance improvement plan is justified and that the way in which the plan is executed and the consequences of failing to achieve the required performance standards, were all reasonable.
Managers should ensure that they are familiar with the employer’s performance management policy and apply it consistently.
The issue of workplace bullying is here to stay.
While no organisation can eradicate bullying from the workplace, businesses which implement appropriate preventative measures can reduce the risk of allegations arising and will be strongly placed to defend any such allegations.
In addition to minimising liability, recognising and addressing the risks associated with workplace bullying can improve workplace culture and increase the productivity of an employer’s workforce.