Bullying, sexual harassment, discrimination - what standard will your organisation tolerate this year?

A new era is upon us. An era where workplace bullying laws and compliance requirements are more onerous than ever before, where damages from sexual harassment complaints are rising exponentially and the boundaries between work and home life are blurring.  In this era, to not only thrive, but survive, organisations must embrace diversity and leaders must inspire cultural change.

“People won’t remember what you say or do – they will remember how you made them feel” a Maya Angelou phrase that rings true after countless investigations into workplace bullying and harassment.

In one corner, are the true victims of bullying, rattled at the hands of their perpetrators, often finding it impossible to articulate how they have been reduced to the unsavoury state they find themselves (to be contrasted from the sometimes vexatious complainants who meticulously craft complaints between meal breaks).  In the other corner what emerges is a pattern of behaviours characteristic of the classic workplace bully: a genius surgeon; a great salesperson; a technical expert; a high flying professional, a superbly productive line manager, a world class revenue generator, a charming and dazzling upward manager - often considered by the organisation as untouchable, invaluable or even irreplaceable - dangerously so.

Beneath these classic “untouchables” lies a revolving door. A revolving door of employees who become collateral damage in their quest to be the best. A  revolving door of victims of midnight rants from workaholics who hide behind keyboards and shy away from courageous conversations they should have in the light of day. A revolving door of disheartened employees who must move on. Will they complain? Not usually. Sometimes they may but only (quietly) and a disgruntled few, will come out all guns blazing. Most will simply leave. And we wonder, why we have disengagement in our workplaces. We wonder why we lose out talent before it blossoms. Yet the solutions are obvious. Not simple, but obvious. 

Compliance is compliance. The law is the law. Workplace bullying is “repeated unreasonable behaviour directed towards an individual or group of individuals at work that poses a risk to health and safety” and is unlawful. Companies and the individuals involved can be prosecuted for breach of Work Health and Safety laws.  Victims may lodge workers compensation stress claims or make applications to the Fair Work Commission for orders to “stop the bullying”. Breach of the Commission’s order can attract civil penalties including for individuals “involved in” the contraventions. Organisations may be sued for negligence for failing to provide a "safe system of work" or for breach of contractual provisions or policies and procedures deemed to be incorporated into the employment contract. The law is the law and these are the facts.

To comply with the law organisations must develop Anti-Bullying, Harassment Policies and Grievance procedures and indeed these are an absolutely necessary base line, but when all is said and done - culture will eat compliance for breakfast. Contracts, policies and procedures are regrettably not going to protect an organisation that does not in the way it conducts its business adopt a zero tolerance for bullying and harassment in any form, at any time. Policies will not protect an organisation unless they are consistently and indiscriminately enforced.

Cultural change is now more important than ever as social media has blurred the boundaries between work and the outside world and the parameters of the behaviour an employer is seeking to regulate become infinite. There was a time when employees’ worked 9 to 5 and what happened in the office stayed in the office. There was a time when the out of office interactions between employees was limited to the office Christmas party or the occasional get together between colleagues on a weekend where they might have a quiet chat about a colleague or grumble about a boss over a beer at the pub. Those days are gone! Now, whatever goes on at the office, or the Christmas party or the occasional get together ends up on social media and often remains there to be seen an infinite number of individuals.  The now predominant use of the social media on handheld devices (which individuals are monitoring as frequently as every 10 minutes) means that a drunk post which seemed like such a hilariously great idea "five drinks in" on a Saturday night can instantly be seen, liked, shared, forwarded or screen grabbed by countless individuals and trying to retrieve something that has been posted in the heat of moment has been likened to trying to get pee out of a swimming pool.

The challenge for organisations operating in this environment is that they may find themselves exposed for their employees’ online conduct - albeit that it may be posted outside of hours. Such liability may arise if the material is posted/ accessed by employees during work hours; if they are connected with employees on social media platforms such that the conduct is occurring on their “watch”; or if its impact trickles into the workplace.  

The prevalence and impact of cyber bullying is also now endemic and we are witnessing cases of cyber related suicide around the world at alarming rates.  At this stage the focus remains on bullying “at work” but as we all know, in the modern world the lines of where “work” is conducted are also blurring and it is not too much of a stretch that one day an organisation may find itself prosecuted for a suicide arising from cyber-bullying connected to the workplace although I do hope the consequences are never catastrophic enough to justify the prosecution spend. 

This year we have also already seen what seems to be unprecedented media reports of discrimination, sexual harassment and sexually inappropriate behaviour at work.  This is despite being at a point (more than 20 years since the introduction of the national Sex Discrimination legislation) where most organisations now have an Anti-Discrimination/ Sexual Harassment policy and Grievance Resolution procedures as is again absolutely necessary to minimise the risk of vicarious liability.

Nevertheless, most organisations, from time to time have the occasional rogue employee who on a frolic of their own deviates from the requirements of those policies, the law, and standards of behaviour reasonably expected in the workplace just because that's just the "special" sort of person they are. Such anomalies will arise from time to time, even with exceptional hiring practices, and can be dealt with by swift and appropriate disciplinary action usually resulting in the removal of the “rogue” from the workplace. But what if the rogue is the CEO, CFO or other C-Suite leader? What if the entire leadership team is a bit rogue and board meetings become a bit like rogue trading? What if the Christmas party, end of financial year party and any other cause to celebrate is an alcohol infused affair filled with unrequited acts directed at unsuspecting employees crossing paths with such fearless leaders or their enthusiastic followers. The followers who are often more likely to be the recipients of complaints and who may begrudgingly throw the C-suite under the bus screaming lack of consistency.

In organisations such as these law suits are inevitable – it’s usually a numbers game relative to the number of employees who leave without making a complaint.  Often when a complaint is made, it's expeditiously resolved with an out of court settlement, the policies and procedures are implemented and reinforced and the behaviour is moderated (at least for a while). However, unless the organisations recognise and addresses the underlying cultural issues that exist and perceptions that underpin these behaviours from the top down, the only effect will be to push these to the underground where they will bubble under the surface and rear their ugly head again the next time someone drops their guard, or has a little too much too drink.

Transformational cultural change in organisations such as these is challenging. There are times when it seems near impossible. The compliance issues are critical and development of very comprehensive and prescriptive policies and procedures outlining the standards of required behaviour (and indeed unacceptable behaviour) is a crucial first step. Employees must be inducted, trained and continuously educated in relation to the contents of these policies and they must be consistently enforced and reinforced in the way the organisation conducts its business and engages with its workforce. But the truly successful organisations in this space, do not just insist on compliance, they positively embrace diversity and the strengths a diverse workforce can bring and reinforce core values such as "respect" to which such attitudes and behaviours are simply counter intuitive.

I had the privilege of listening to a very powerful presentation by Dr Adam Fraser at the AHRI Leadership Conference recently that encapsulated a pattern I had observed over many years - "there is no such thing as a trivial behaviour"  because dysfunction perpetuates. One example he conveyed related to a train station within the LAPD where fare evasion was commonplace and, unaddressed, became increasingly so escalating to vandalism, theft, assault and serious violence. In sum, it was found that addressing the "petty" fare evasion (as tedious and time consuming as it was relative to the cost of fare) in turn reduced the more serious crimes.   Quite simply, it matters what leaders do as "the culture of an organisation is shaped by the worst behaviour a leader is prepared to tolerate” (Gruenter and Whitaker). In a similar vein (closer to home) Lieutenant General David Lindsay Morrison AO also said the "the standard you walk past, is the standard you accept".

So what will your organisation tolerate in 2016? Will you make the courageous decision to part ways with your dysfunctional "untouchables" or "brilliant jerks" (as others have called them)?  What standard will you walk past as a leader, or even an employee? We can certainly assist you to polish contracts, policies and procedures as an absolutely necessary baseline and guide you through the exit processes if the tough decisions are ultimately made, but even as a lawyer I must confess - your culture, will eat compliance for breakfast.

This content is general commentary and opinion of the writer provided for information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied upon as legal advice. Readers should obtain specific advice relating to their particular circumstances.  

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Comment by Bernard Keith Althofer on January 22, 2016 at 8:25

This is a great article that articulates the emergence of counterproductive workplace behaviours as an issue that many organisations and their managers and workers continue to struggle with, and yet, despite ongoing training or presentations that have been conducted, the problems continue.

As I have indicated in a number of other forums and discussions, making people responsible and holding them accountable through performance management and appraisal systems seems to be one way of achieving behavioural change.  For all the comments and suggestions being made to do away with performance management, it seems that the legal implications that arise from not managing or addressing counterproductive workplace behaviours leads me to believe that some managers and even workers do not accept that performance management systems are reasonable management actions (if conducted in a reasonable way).

It seems that there is a reluctance on the part of some managers to actually address counterproductive workplace behaviours at the they believe complaints will be made against them.  In addition, some also see that it is acceptable and reasonable to refer such complaints to HR and expect them to deal with it.

From some discussions I have had over the past 20 years about performance management and workplace bullying for example, it appears that there is a disconnect between organisational policies and what is actually practiced in a workplace.  For example, in an audit I conducted, I found a number of managers who did not believe it was their job to address such behaviours; that if they tried to address such behaviours, they would not get the support or backup of their employees when required; and even some managers who openly stated that if 'bullying' was mentioned, it would mean they would have to do something about it.

For the posturing and discussion promoting more training in relation to the prevention, detection, reporting and resolution of counterproductive workplace behaviours, it will be a case of 'flogging the dead horse' unless managers and workers are actually trained in how to use performance management systems and processes to address counterproductive workplace behaviours.  As indicated in the above article, 'the standard you set is the standard you walk past', and I would suggest that the way some performance management systems and processes is implemented, is indicative of how counterproductive workplace standards are tolerated to the point of acceptance.

The slippery slide to dysfunctional workplaces starts when standards are not enforced, and if managers and even workers lack the ability to do this, then perhaps they need to be trained on the complexity of issues involved.

Comment by Bernard Keith Althofer on January 25, 2016 at 7:48

It seems that despite the law being the law, there are still some managers in some organisations who, because they have never been held to account for their actions (or lack thereof), will 'allow' some behaviours to continue.

Some managers and even some aspiring managers may be thrust into positions where they are outside their comfort zone i.e. going from a good operational background to a position of managing people.  The skill sets they have at one level may not meet the requirements at the next level. In addition, managers and even workers are not provided with any understanding of controls that can be applied to hazards/ risk factors associated with bullying or that contribute to situations where allegations and incidents of bullying can occur.  The hazards or risk factors can include:

  • —Negative leadership styles (includes autocratic styles and styles that are too relaxed with inadequate supervision and feedback
  • —Workplace relationships—
  • —Human resources systems—
  • Poor workplace relationships
  • —Organisational change—
  • —Organisational/workplace culture—
  • —Inappropriate and/or unsafe systems of work—
  • Workforce characteristics

Some managers and workers struggle to cope with the constant change that exists when these hazards or risk factors do not have sufficient or appropriate controls in place.  As individuals find it increasingly difficult to cope with these changes, and as their workplaces becomes more dysfunction, it seems that a general response is to provide more training. It may be questionable as to whether or not this will address the root cause, unless of course, the training has been delivered to address that specific hazard or contributing factor.  It seems that risk assessments might help identify the actual hazard or contributing factor so that nformed decisions can be made regarding the allocation of funding and resources.  It seems that whilst the law might require specific responses, a practical approach might be to actually address the hazards or contributing factors that are leading to the allegations.

It also seems that some managers only refer to the numerous policies and Codes of Conduct post event.  Organisations need to be proactive and take preventive action if they want to reduce the level of risk exposure associated with counterproductive workplace behaviours.  Holding managers and even workers to account through performance management processes, should mean that learning and development is also addressed particularly for those struggling to understand how and why their behaviours may need to change.  In addition, the performance management processes can be used to educate and inform those being targeted on strategies they can use to respond to counterproductive workplace behaviours.  At some stage, it become more than a legal requirement or obligation to address counterproductive workplace behaviours, and encompasses a moral and ethical obligation.

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