How to handle workplace bullying
Raising a complaint of workplace bullying is one of the hardest things that an employee will ever have to do. The usual feelings of anxiety, vulnerability and self-doubt are likely to be compounded when the alleged bully is the employee’s manager.
It is this power imbalance that stops many employees coming forward to start with. There are also a number of horror stories about how employers have dealt with complaints, and about how victims have been made out to be at fault, which act as a regular warning to employees against taking action of this kind.
The fact is that employers need to get much better at handling bullying complaints, and this starts with ensuring that there are safe ways in which complaints can be raised. It is also important that complainants feel as though they are involved in the process and have some level of control over how their complaint is dealt with.
There seems to be an assumption on the part of some employers that as soon as a workplace bullying complaint is made, a formal investigation needs to be conducted. This is not the case.
When an employee raises a complaint, all of the available options should be discussed with them.
Depending on the nature and seriousness of the complaint, the first step may be for the complainant to raise the concern directly with the alleged bully (this is known as the ‘‘self help’’ option).
This will only be appropriate if the employee feels confident and safe enough to do so, and in situations where they have not previously tried this approach. However, it is surprising how often an alleged bully is oblivious to their behaviour, and when it is raised can address this in a way which allows the employment relationship to continue constructively.
The intermediate option is where both parties participate in a meeting which is facilitated by a skilled third party. Within this forum, the complainant may have an opportunity to raise concerns, and the alleged bully has a chance to listen and then respond.
The most formal option is that of an investigation into the complaints. This can often be a lengthy and stressful process involving an investigator interviewing both parties and other witnesses, and coming to findings of fact. These findings are written up into a report which is provided to the decisionmaker who then determines whether any further action, disciplinary or otherwise, should be taken.
The interview process can be particularly challenging for complainants who may feel as though their story is being questioned and tested. A thorough investigation will, however, require an investigator to clarify any inconsistencies in the accounts that are being presented and to make findings as to credibility.
The standard of proof that must be applied by an investigator is whether a fact is established to ‘‘the balance of probability’’. In other words, is it more likely than not that the event occurred? This can be problematic in investigations where it is one person’s word against another, because if in doubt, an investigator would be bound to conclude that there is insufficient evidence to establish the allegation.
Having participated in an investigation process, complainants can then face issues relating to what information they can expect to receive about the outcome. Employers are often cautious about disclosing information regarding one employee to another.
The Office of the Privacy Commissioner recently provided advice on how employers should manage requests for information from complainants in bullying investigations. The overarching principle is that an employee is entitled to information that relates to them personally. However, they are not entitled to personal information about other people, including the alleged bully in an investigation context.
The key takeaway from the guidelines issued by the Privacy Commissioner is that a complainant is entitled to know about the outcome of a bullying investigation (as it relates to them) but they are not necessarily entitled to all of the information about other people who were involved.
In particular, a complainant will not usually be entitled to know whether the employer has taken disciplinary action against the alleged bully as a result of the investigation.
Navigating a workplace bullying issue is difficult for all of the parties involved.
From the complainant’s perspective, it is important that they are consulted about the process and are provided with a range of options from the outset as to how their complaint can be dealt with. The practice of employers launching straight into workplace investigations seldom results in a satisfactory outcome for anyone, and continues to discourage employees from coming forward with legitimate complaints.