In this article, Worklogic’s Senior Investigator Lisa Klug, explores the evolving understanding of the definition of bullying in Australia, and examines the grey areas around what is meant by “repeated” in the Fair Work Act (FWA) definition of bullying and what sort of repetition causes a risk to health and safety.

She then examines the European definition of bullying, which has a much higher threshold for behaviour to be defined as bullying compared to the Australian approach and highlights its benefits in terms of the potential it offers to address and resolve workplace conflict earlier, and before it is labelled as bullying.

Finally, Lisa explores notions of bullying within the broader context of conflict in the workplace and advocates for the adoption of a more nuanced, proactive approach to inappropriate behaviour in the workplace, leveraging tools including workplace reviews, mediation, training and coaching.

 

The Fair Work Act (FWA) definition of bullying

 

The FWA and many organisation’s bullying policies define bullying as:

repeated unreasonable behaviour by an individual or group that creates a risk to another worker’s health and safety”.

‘Repeated’ is not defined in the legislation.[1]

In applying the bullying definition in Ms SB [2], Commissioner Hampton, however, helpfully noted that:

While useful in understanding what is bullying, this case leaves open a wide range of types of repetition from two upwards.

 

Victorian Workcover Guidance Notes

 

The 2003 version of the Victorian Workcover Guidance Note is one of the very few places where ‘repeated’ has been defined as:

That definition of repeated disappeared without explanation in the 2009 version of the Guidance Note. In the current October 2012 version, repeated remains undefined and bullying is simply defined as behaviour that is:

“characterized by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.” [4]

The 2003 approach, however, was re-affirmed but the House of Representatives Standing Committee on Education and Employment report, “Workplace Bullying – We just want it to stop” [5] when the Committee noted that “repeated” behaviour refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.

 

So what is ‘repeated’ bullying behaviour then?

 

We can say with confidence that overall guidance on what is ‘repeated’ bullying indicates that the behaviours must be:

 

But even this certainty becomes murky after a FWC decision that a 20-minute tirade that occurred in two episodes during one evening was repeated within the definition of bullying which appears to set a very low threshold for bullying.[6]

Questions remain including:

 

Lessons from the European approach to bullying

 

Some guidance may be had from European bullying research which began in the early 1990s, almost a decade before Australian researchers followed their lead.

In Europe, that research has led to a widespread acceptance that bullying is defined as:

“Harassing, offending or socially excluding behaviour or negatively affecting someone’s work, engaged in repeatedly (e.g. weekly) over a period of time (e.g. about 6 months) and involving an escalating process in the course of which the victim ends up in an inferior position of power and becomes a target of further systematic negative social acts”.[7]

Most notable about the European definition is that it requires a significantly higher threshold for behaviours to be found to be bullying with its concepts of “systematic”, “long-term”, “persistent”, “prolonged” behaviours and it also requires additional elements, not found in Australian definitions of bullying, such as escalation and power imbalances.

Occasional or sporadic exposure to negative behaviours over a period of less than six months, has instead been labeled as a social stressor, common in all workplaces, and not bullying – as exposure for shorter periods does not lead to negative health impacts.

While more prescriptive than the Australian definition, the European approach is nuanced enough to note that passive and indirect forms of bullying such as exclusion or spreading rumours may take a longer period to create a risk to a worker’s health and safety, while active and direct forms of bullying such as jokes, verbal abuse, physical threats might take a shorter period.

 

Why the European threshold for bullying is higher

 

Before deciding if our lower threshold warrants a review of how we are labeling behaviours as bullying or not, it is worth understanding why the Europeans set their threshold significantly higher than Australia.

The difference appears to lie principally in the European research findings about the mechanism of bullying and the understanding that bullying is a prolonged process that follows this pattern:

In other words, it is the duration to the bullying process that wears down the victim, their coping mechanisms, isolates and weakens them as they struggle to understand the meaning of the behaviours and regain control and ultimately leads to the risk to health and safety when the victim can no longer cope.

 

A “risk to health and safety”

 

At Worklogic, we think the European definition and understanding of the process of bullying is useful in clarifying the grey areas of what sort of repetition causes a risk to health and safety. Their approach, while different, does have relevance as both bullying definitions contain the elements of ‘persistent’, ‘repeated’ and ‘risk to health and safety.’

It is the last element of our bullying definition, that behaviours must ‘create a risk to health and safety’ that demonstrates why persistence over a longer period of months might be required for behaviour to be accurately characterised as bullying.

As noted by Commissioner Hampton in Ms SB[8],

Without escalating frequency and intensity, sporadic or irregular behaviour over a short period, or in small numbers will not generally create a risk to health and safety (unless very serious) and hence are not yet bullying. They may be uncomfortable, bewildering, frightening even, but with adequate social support, organisational processes for addressing them, and internal coping mechanisms, they may not yet be causally relevant to the risk to health and safety.

Bullying, by its repeated nature, is a process, and is generally not found where there has been only two behaviours (unless perhaps if those behaviours were of a serious nature), or where they occurred all on the same day.[9]

 

Conflict vs Bullying

 

It is our view that in determining whether bullying has occurred, an analysis of the frequency and duration of the behaviours should be as important as the analysis of the nature and seriousness of the behaviour.

This suggestion may perhaps however, be inconsistent with some of the low threshold cases decided by the FWC noted in this article.

Please note we are not suggesting management inaction in situations where unreasonable behaviours have not been occurring for six months or more every week and therefore might not meet this higher threshold of bullying. Quite the contrary, before behaviours become repeated and cause a risk to health and safety and lead to complaints or injury, we recommend that most resources should be thrown at resolving the earlier stages of conflict, before they are bullying in nature.

 

Dealing with conflict early

 

More certainty and effective decision making about what is bullying and what is not bullying will often free up organisations to deal with the early stages of inappropriate behaviours without the bullying label driving how organisations respond.

Before behaviours become repeated bullying, management has a very important role to detect and deal with negative experiences as early as possible.

Research shows that the bullying process begins from subtle, low level aggression (not yet bullying), to bullying (intense and direct aggression over time) to stigmatization and finally to traumatisation.[10]

While the parties remain of equal power, it will remain conflict but not bullying.[11] The important difference between conflict at work and bullying therefore is in the frequency and duration of the behaviours.

At early stages of the conflict escalation, when parties are still on equal footing, management have a much larger toolbox of options to use that can most effectively intervene and eliminate behaviours that with more time may become bullying.

The toolbox at that stage includes workplace reviews, mediation, training, conflict coaching, individual skill development in communication, anger management, perspective taking, or negotiation.

Furthermore, while the matters remain best characterised as conflict rather than bullying, there is a reasonable expectation that the staff themselves, perhaps with some coaching and third party support, can be required to take responsibility to resolve these matters themselves.

 

A more nuanced approach

 

Labeling behaviours too early as bullying by setting the threshold very low often means that these effective dispute resolution methods are abandoned too early and claims of bullying are dealt with by formal investigation or litigated when other early dispute resolution interventions do often have better outcome for the parties and the organisation.

It is clear that investigations of conflict will rarely, if ever, be effective to address the underlying causes of conflict and will have a polarizing effect on the parties and witnesses. After any investigation, intensive and complex post-investigative work will often be required to restore effective working relationships.

On a positive note, at Worklogic over the last couple of years, we have seen a much greater use of workplace reviews, targeting training and mediations to manage early allegations of bullying type behaviours, in tandem with investigation, if that is necessary.

These multi-layered and more nuanced responses are more effective to reduce or eliminate bullying than waiting for complaints to occur and then resolving them individually via investigation alone.

We conclude with the tantalizing thought that if organisations can succeed in acting before the duration and repetition causes a risk to health and safety, and successfully intervene before conflict escalates and bullying scenarios unfold, bullying can successfully be minimised or eliminated.

 


[1] s789FD Fair Work Act
[2] [2014]FWC 2014(12 May 2014)
[3] Worksafe Victoria “Prevention of Bullying and Violence at Work” February 2003
[4] Worksafe Victoria, ‘Your guide to Workplace Bullying – prevention and response”, October 2012
[5] House of Representatives, House Standing Committee on Education and Employment tabled its report on the inquiry into workplace bullying entitled: Workplace Bullying “We just want it to stop”. October 2012
[6] O’Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWC 7011
[7] Einarsen, S et al. (2011), Bullying and Harassment in the Workplace: developments in Theory, Research and Practice 2nd Ed. London: Taylor & Francis. (p22).
[8] [2014] FWC 2104
[9] If we took the European approach in Australia, some cases we have found to be bullying may have a different outcome. For example, in Ms Susan Purcell v Ms Mary Farah and Mercy Education Ltd T/A St Aloysius College[9] examination of the frequency and duration dates of the proven unreasonable behaviours (4 out of 16 alleged) demonstrates that they occurred on 3 separate dates over 18 months. That frequency and duration of proven behaviours raises a question as to whether the unreasonable behaviours were in fact persistent and whether they had the possibility, given their infrequency and lengthy periods between each event, of draining the coping mechanisms of Ms Purcell and hence creating a risk to her health and safety.
[10] Einarsen, S. (1999) The nature and causes of bullying at work. International Journal of Manpower, 20, 16-27.
[11] Einarsen, S. and Skogstad, A. (1996) Bullying at Work: Epidemiology findings in public and private organizations. European Journal of Work and Organizational Psychology, 5, 185-201.

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