Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Standing Committee on Education and Employment
11/07/2012
Workplace bullying

RAYNER, Ms Moira, Deputy Chair, Workplace Relations Section, Law Institute of Victoria

[09:35]

CHAIR: I now welcome representatives from the Law Institute of Victoria to today's hearing. Although the committee does not require you to give evidence under oath, I should advise you that these are legal proceedings of the parliament and have the same standing as proceedings of the respective houses. Thank you for your submission. I invite you to make an opening statement. After that, we will proceed to questions.

Ms Rayner : I personally have investigated many allegations of bullying. These allegations are of such a variety that it is almost impossible to say ahead of time what is unreasonable conduct that causes a risk to health and safety, which are the guidelines in Victoria. From my personal experience as a practitioner in this area that nearly all of the examples that I have investigated have been the result of management failure to identify and to intervene before bullying became extremely dangerous to one or more people in the workplace. That, it seems to me, is the major problem. Dealing with that is a shared responsibility of the Commonwealth and the states. Most importantly, in our submission we say that there is not even an agreed definition of what bullying is. A definition will not be of much help if it uses words such as 'unreasonable'. It needs to come with many illustrations of what bullying conduct may be that break across some perceptions—such as, for example, that only a manager can bully or that a staff member cannot possibly bully anybody in authority over them. I will leave it at that for the moment.

CHAIR: When you talked about management failure, do you have any feeling about why those management structures failed? For example, was it that they did not know what to do? Were they worried about some legal ramifications? Were they complicit in the bullying; part of it? What is your feeling about how management failed? Did they not have good advice? Was it more likely to occur in small businesses or large businesses? Please give us some of your general observations in that area.

Ms Rayner : These come from my personal experience. I find that on the whole management in small companies do not have a clear idea about how to intervene. They tend to hold back waiting for someone to make a complaint and then not know how to handle a complaint. It is all very well to train people in, for example, what discrimination or harassment might mean or to provide a technical definition but people managing people need to know how to see when it is happening and how to exert authority. Managers have authority and they should use it without waiting for someone to make a complaint.

Secondly, often the internal politics in an office make it very difficult for a person with responsibility and the power to do so to act, because of perceptions that they will not be supported or that this kind of conduct has been tolerated for so long that it is just part of the climate in this workplace. There have been, unfortunately, tribunal decisions that tend to support that—and others to the contrary, more frequently in a circumstance.

Thirdly, it may happen covertly anyway and managers only see the end result. Therefore they are more inclined to perceive that the alleged victim is actually a bad performer or poor staff member who perhaps should not be in this workplace, and that is the easiest way to deal with it.

But the most important one, perhaps, I can give you is a personal example. It is very personal. It is that nobody sees themselves as a bully or as misusing authority. The less authority they have, the more inclined people in the workforce are to use it, and forcefully, if they are a bit unsure about their authority. My example goes back 10 or 11 years ago when I was working in London as the director of a small open-plan office known as the office of Children's Rights Commissioner for London. I was the director. We had seven staff. At the end of the first year I learned, to my shock and dismay, that one of my new staff had reported to the board who ran the organisation that Moira Rayner seemed to be a bully and to be taking no responsibility for her own actions. I discovered that this talk had been going on for a year amongst the staff. It had been reported at the end by a staff member who had seen no bullying conduct but had listened to the talk.

It raised for me a number of really important issues. One was how appalling it is to be told you may be a bully. You feel like a victim yourself—misunderstood, angry, wanting to lash out. It may not be true, but it causes tremendous self-doubt, so how you react will depend on the quality of the person. Secondly, as the director, it was my responsibility to follow up where there seemed to be things not working very well. I had been aware that something had been going on and that staff were not necessarily as forthcoming as possible. What I then discovered was that it all arose from a single incident in the first seven or eight weeks, when I had received a difficult telephone call, slammed down the telephone receiver at the end of it and said in a broad New Zealand accent a rude word beginning with a forbidden consonant. They were shocked by it and said nothing. I said, 'Oops, sorry,' and then did not follow it up. It all followed from that act of inappropriate behaviour in the workplace, of which I have never been guilty since, I believe.

It showed me how easy it is for a culture of perceptions of bullying and intimidation to arise, even in a small office like that which had a code of conduct which said, 'If you are unhappy with anything that's said or done, raise it here and now.' Once I became aware of it and aware that a board member had been aware of it and done nothing, said nothing to me or anybody else, I was able to sort it by clear communication and re-establishing trust. But it taught me that if you, as a manager or a supervisor, have the slightest doubt that there is anything in the workplace which means communications are being befuddled by perceptions of poor behaviour or a likely threat of a similar behaviour, you chase it down. Most managers would rather it just went away. That, it seems to me, is the crux of the matter. People either do not see their own behaviour as contributing to an inappropriate workplace culture or sending the wrong message, or they overreact defensively, as I did—fortunately, I did not act on it—or they simply hope it will go away and the person who is being hurt will leave.

To me, the role of the Commonwealth is not only to come up with very clear guidelines about what is and is not bullying but also to make it absolutely clear at any workplace, no mater what size, that there are certain signs of bullying behaviour in the workplace and they may be coming from you. Therefore you need to have a mechanism for quickly dealing with it, because most victims of bullying simply want it stopped. Their fear of acting may or may not be reasonable. It does depend on the circumstances. The major problem with managers, in my experience, is that they do not perceive that they could possibly be wrong, and they are often acting under stress, as I was on that day. When you have done the wrong thing, you apologise, but do not leave it. Doing nothing is not an option.

CHAIR: We have heard about the definition, and we have had some evidence given to us that unless there is a physical injury or it is at the really serious end, you cannot define bullying because it is all interpersonal. But there is a broad range—yes, there is an interpersonal disagreement but then there is the very systematic. You mentioned that a way to define it is to have a lot of examples. Do you have any other comments about how a definition of what bullying is and is not can be established?

Ms Rayner : Yes. We dealt with this in sexual harassment. Harassment is really just a form of bullying that is linked to one of the protected characteristics under antidiscrimination law so that a single act of harassment is bad enough to warrant action. Most bullying definitions require a sustained or protracted period of similar behaviour which is 'unreasonable'. 'Unreasonable' has never been defined and yet it should be. I have got two operating examples. One is: you use a similar sort of test to that of discriminatory harassment, namely that the conduct is likely—that it is foreseeable—to make a person feel threatened, intimidated or humiliated. The other, which has been used in Workcover claims, is: when the conduct complained of is alleged to have a perfectly legitimate outcome, namely performance management, discipline or getting better productivity, and is put up as a defence, that is disqualified as reasonable if the conduct complained of is highly unlikely to have the effect which it is sought to have.

There was a case 15 years ago of a radio station where the manager, to get better productivity, regularly swore and shouted at his people—that is obvious bullying—cleared their desks and made rude remarks, but the more subtle things were gossiping about staff members' private behaviour to other staff members, dividing one against the other, and being capricious with the giving or withholding of leave. This resulted in a woman having a massive and permanent psychiatric crisis from which she is unlikely to recover.

It seems to me that unreasonableness or the claimed reasonable purpose of the behaviour needs to be, again, spelled out. You hit on the crux of the matter, Madam Chair, when you say that it is very hard to take action if there has not been some physical consequence such as a person being hurt, burned, stuffed down a vat or something of that sort. Yet every day we see those injuries, in terms of people having psychiatric illnesses or those which are stress-induced, and leaving the workplace rather than saying anything.

A person who has actually been bullied has been disempowered and they cannot use, as in Victoria's Brodie's law case, the access that is offered to them through the courts for a restraining order or through the police, because they are too browbeaten, downtrodden and afraid to do so, knowing—and they do know—they will be victimised for raising a matter for which the possible consequences will be a prosecution, conviction and maybe a jail sentence. So the people who are conniving at it in the workplace by allowing it to occur will punish them still further.

It comes back again to managers, supervisors and owners of business—as I am—to know when you must prevent certain actions from occurring and to be vicariously responsible for allowing individual bad behaviour to recur in the workplace when you ought to know what is not covered. Bullying does not at this stage bear vicarious liability for an employer. I would be unpopular with many of my clients—I act for employers, mostly—if I were to suggest that it ought to be considered by this committee that when there is a culture of intimidation, harassment and bullying and many instances of individual cases and no effective response from an employer, the possibility of vicarious liability should be somewhere in the scheme for dealing with bullying civilly.

Mr RAMSEY: You touched on small business earlier, and you said that their systems for dealing with bullying are largely to wait until an issue arises. They are preoccupied. Do you have any comment on the larger end of businesses? Interestingly enough, when we had a session yesterday when the public brought forward their individual experiences, many of them were involved with large organisations and often government or government associated organisations. You singled out small business.

Ms Rayner : I singled them out because small businesses cannot be expected to have a complex response. I am less hard on small businesses, actually, in terms of evaluating their responses because often it is a personal reaction which is required and may or may not be possible in a workplace of fewer than 20 people. In big business, large corporations, universities and schools, bullying is rife. In one of the universities I have been working in, for example—and I do a lot of work with universities and a lot of training for them—we have found hundreds of complaints after training in what bullying is and how to respond to complaints. Around about five per cent of those are ever documented because most decide not to proceed. So I do not think large organisations can say with any confidence that bullying is prevented. In fact, I think many disincentives to raising an issue in, say, a tertiary education institution mean it may go on hidden for a very long time. The major obstacle to dealing with it is the internal politics, the hierarchies of power, formal and informal, which may or may not let it happen.

I have met several personal injury lawyers, of which I am not one, who say to most bullying complainants with large or small employers that, unless they have witnesses who are prepared to come forward or some documentation that they warned that this was having a bad effect on their health, the only real remedy is to get out and get help before the damage is serious or long lasting. Since large organisations have embraced diversity, equal opportunity, antidiscrimination, affirmative action and contact officers, there is no reason why they should not also have effective contact officers with whom remedies can be discussed in confidence. But very few of my clients have gone that way. Those who take my advice do, of course.

I reckon that discrimination, harassment and bullying are part of a continuum of severity of the misuse of authority or actual power. Let me emphasise again: it is not always top down. I have seen some dreadful examples of upwards bullying by staff who do not like their manager—men who do not like being managed by women or women who do not like being managed by other women. I cannot say there is anyone who is exempt.

Mr SYMON: In your submission you talk about the unlawful side of behaviour that can be dealt with under existing regimes, but then you go on to suggest that maybe it is worth looking at a civil remedy for the purposes of bullying. Could you expand on that? We are really looking for some answers here and I would like to hear some words on that.

Ms Rayner : When I was the Equal Opportunity Commissioner here and in another state, we got a lot of bullying complaints that were not really discrimination complaints or harassment complaints. They were bullying workplaces in which incidents had occurred. I was convinced then that the best remedy was somebody being able to write a letter to an authority like the commissioner used to be—it no longer exists in Victoria—and have an option of an early conciliation meeting in which they could express the hope that the behaviour could stop without going any further than that. That is what we were talking about in the workplace relations section just last week, as a matter of fact—just how could it work?

We do not want to flood Fair Work Australia with bullying claims. We do not want to turn Fair Work Australia into 'Fix Everything in the Workplace Australia' either. But it seems to me that, if we are talking about misuse of power, there should be some mechanism for an independent statutory officer to at least offer conciliation. I am not talking about mediation. Someone who is a bully does not listen to mediation. They need to be pulled up in front of somebody who has the power to say that this is or is not bullying and to be told, 'This falls within the definition,' so they cannot shrug it off and say, 'That's just the way I am,' or, 'She's supersensitive,' or, 'They are hypersensitive and fragile and this is the way things go in our workplace.'

In my view, it would be very helpful to have some remedy where fairly quick conciliation of a preliminary matter can be dealt with so that a bully and a person who has been bullied can have some clarity about whether the conduct at least complained of, not proven, could be bullying within the meaning of appropriate federal legislation. I found that worked a very great deal in my statutory office in the early nineties, and the early noughties too, in the other state because it had to be taken seriously. This model has proven to be unpopular in the equal opportunity area, where increasingly complainants are being sent to prove their case on the balance of probabilities in a tribunal. Some of them are going to the Fair Work Ombudsman and some are going to Fair Work Australia claiming adverse action when they have been bullied and complained about it. There are a multitude of options but it seems to me this is the one which is missing and which might perhaps be reconsidered as something that was useful and proved itself to be useful on an interim basis.

Mr SYMON: By giving the opportunity to be heard may in fact solve problems down the track? The other thing I was thinking of, and we discussed this yesterday in Sydney and a little today, is the collection of data in this area. In Australia, there does not seem to be that sort of approach. If it was recorded and followed through, I suspect it would provide a wide range of data.

Ms Rayner : It would and you would probably get a lot of cases that really were not bullying because of the individual's perceptions. To me, introducing something like the old commissioner model with conciliation would help people to see what is not bullying, what is reasonable performance evaluation, what is a redundancy program, what it is to obey lawful instructions in the workplace and what is not wilful disobedience when someone tries to argue for a different course of action. But again we are talking money, so how it could occur I am not sure.

Collecting data means individual employers would have to keep data which could be self-incriminating and they would be reluctant to do that, and I would be reluctant to advise my clients to do so. Collecting data through a statutory agency such as Fair Work Australia, the Fair Work Ombudsman or some other mythical bullying commissioner—perhaps a bullying tsar; I am making it up on the run—would give you some idea. But the most important thing for the people who are receiving this is to at least publish, for the education of the community, examples where an officer has said, 'Yes, that could well be bullying' or 'That couldn't possibly be' so they have a guideline. That is how equal opportunities started in 1977 and 1978 particularly—sending out examples of cases that were brought to the then commissioner and the responses which were dealt with anonymously, and then sent out to employers and they frequently got a message about what was and what was not acceptable behaviour.

Mr RAMSEY: You are suggesting that when somebody complains they should be able to go to an arbitration arrangement. Yesterday in New South Wales were told that there were 5,000 complaints last year, of which 300-and-something were proven in the end. If you multiply that 5,000 across Australia there are going to be a lot of conferences.

Ms Rayner : I do not think they would all go to conference. I did not find that they did. Often all they wanted was an authoritative pronouncement—'Yes, that could be' or 'No, that couldn’t possibly be' on the phone. That is what I found with the universities I have dealt with—hundreds of complaints of bullying and then they decided not to go any further; and they could have gone further through grievance processes and other quite complex grievance handling processes in universities. My feeling is that you might get 5,000 in a year in one jurisdiction and you could say that many of them were vexatious or lacking in substance, or misconceived. Then you have a small number that could be resolved, perhaps through talking and certain behaviours just stopping, with no-one going any further and dealing with it on a very informal level. It is the informality that is the key. As soon as we bring in lawyers—and I am one—we bring in natural justice, delays and procedures and stuff like that. It seems to me an authoritative voice from someone who cannot punish you, but can tell you, 'That is not right', is often a very good thing.

Ms O'NEILL: In terms of public education you are really talking about a cultural education program there, similar to equal opportunity, and it is great to have that example and the positive outcomes to draw on. In terms of education and training, in your submission you said that it should be begin as part of the school curriculum. It is already generally embedded, but as we move to a national curriculum perhaps there might be some more consistency. Perhaps if we move to some national laws that might be easier to achieve as well. Can you explain what you mean when you say that there needs to be:

… further types of educative programs made available prior to entering the workplace—

and I am thinking maybe as they shift from one workplace to another—

which focus on preventative as well as responsive measures.

Ms Rayner : A colleague and I have been doing a lot of anti-bullying training. I think we have seen every bullying video made in Australia, and they are all dreadful. It seems to me that some proper effort ought to go into demonstrating the complexities of bullying behaviours and that part of the induction into workforce experience ought to be explaining to participants and new managers what it can be. Some of the most damaging stuff can be constant criticism, constantly shifting guidelines or lack of clarity about your roles and what is expected of you. I would like to see a national incentive to require all new employees to have some sort of training in what bullying is, what bullying is not, what you can be responsible for if you stand by and let it happen and what you can do to prevent it happening to you, together with some follow-up lines about where you can talk about it. We are not the nanny state, so we cannot force this to happen. But you can—this is why I go back to my suggestion about the vicarious liability—encourage employers to take it seriously.

It would be good if national bullying laws said that if there is proven to be a culture of non-compliance with anti-bullying laws in a particular workplace an employer may be put on notice that they will be vicariously liable for the next one. We know how it can go on, from what happened yesterday when the Minister for Defence, Stephen Smith, released his report on sexual assaults in the Defence Force. That stuff there, much of it was so-called initiation and hazing rites—that is, bullying—and it is entrenched, we can now see, in a particular sector of the workforce because it has always been part of the game. Indeed it was part of the game when I started law that there was hazing and various activities. It was strongly supported until one courageous dean said, 'If you do this I will cancel your student registration for the year.' And it stopped. I think that is what you need—you need an assertive statement of responsibility being sheeted home to leaders who will not lead and managers who avoid early intervention or defer their responsibility to the victims.

Ms O'NEILL: Can you explain a little bit more about 'vicarious liability' for the non-lawyers.

Ms Rayner : I beg your pardon. Vicarious liability means that if I am employed by the Smith University, for example, and I have a habit of bawling out my research team because they are not working as fast as I wish them to on the new projects that I am bringing in regularly without a work plan, they may make a complaint against me for bullying them because it is unreasonable behaviour. In this case, my employer, who has internally managed a number of those complaints, may find itself actually liable for what I did or did not do, even though they did not know about it, because they should have known about it from the stories they were hearing. That means liability for a person or body who did not actually do anything and who may not have known is deemed to be liable because of their power in the workplace.

CHAIR: Vicarious liability does occur for sexual harassment?

Ms Rayner : Yes, it does; and it also occurs for discrimination in other areas. If you ought to have known and you do not deal with it properly, then there is vicarious liability.

CHAIR: Thank you very much for providing your evidence today. If there is anything else that you are able to provide, please do not hesitate to forward it to the secretariat. You will be sent a copy of the transcript of your evidence, to which you may make corrections of grammar or fact. Thank you very much for coming here today.