At a recent conference, one of the speakers talked to the topic of workplace bullying, Workers Compensation claims and employee return to work. One of the first things she mentioned was that employers spend too much time fighting claims. She advised employers, especially when there was a boarder line case, were often much better off and it was more cost effective, to accept the claim and support the employee to return to work as quickly as possible.
There is one additional, yet essential, point I would add when a claim has already occurred in your workplace. Use the claim to learn from it and improve your systems so you can prevent it from re-occurring. This is what will help make your business more productive, safer and cost effective in future.
But how do you learn from this?
Let’s look at a recent Supreme Court working bullying and harassment case heard in the Northern Territory to put this into practice.
Mr A is injured at work
In March 2022, an employee (who I shall refer to as Mr A) of a local hospital was found to have suffered an injury in the course of his employment. Mr A was therefore deemed to be entitled to be paid compensation under the Return to Work Act 1986. The hospital decided to appeal the decision which failed in the Supreme Court, a decision finding in Mr A’s favour in August 2022.
The circumstances that lead to this decision were as follows:
- In January 2018, Mr A obtained the position of switchboard operator.
- After that time, he was subjected to regular rude and demeaning behaviour by Ms P, this also have been carried out in the presence of other staff members.
- There were disparaging remarks about his cultural background, including that he “did not look Aboriginal”.
- There was a mock emergency staged by Ms P leaving Mr A believing a person died as a result of his inability to help.
- It was noted that up to 28 March, he presented to work and was able to completed his job role.
- In March and April 2018, he presented to his GP in distress. Mr A claimed to have been bullied and harassed by his coworkers and was subsequently declared unfit for work.
There were two other points I noted from the matter. Firstly, Mr A was a person who was described as vulnerable with a significant medical history and traumatic experience. However, it was not able to be proven that he had a pre-existing diagnosis. Secondly, Ms P was described as having taken her actions “under the guise of training” and described as having a “lack of insight into the potential effects of race based bullying in the workplace”.
Tracing the incident back to workplace systems
Incidents like these, while it is preferable to avoid them, present an ideal opportunity for you to learn from and improve your workplace. A systems based approach to bullying and harassment prevention in the workplace assumes that the problem, in this case the behaviour and proceeding injury, has occurred because a workplace system either failed or didn’t exist in the first place.
In this case from the Northern Territory hospital, we can only make assumptions as to what systems may have failed. However, for the purposes of this exercise, lets make those assumptions and try and identify what may have been problematic systems in this case.
- Documented policies and procedures on bullying and harassment. It’s a fairly obvious starting point, but even the obvious need to be considered when assessing what lead to the bullying and harassment incident. The first question you might ask is do the policies and procedures exist? Are they up to date with recent legislation and best practice changes? Are they consistent with your workplace values and beliefs?
- Training and education. Have all employees been educated in workplace behavioural expectations? When did it occur and did they have a refresher? If it was e-learning, was it treated as a tick and flick exercise by employees running in the background of their screens while they completed other more important work?
- Performance management. Were there historical behavioural issues that weren’t managed? If they weren’t managed effectively, were responsible managers educated in performance monitoring and improvement? Do they have the resources to manage performance or is it another task on their long to do list?
- Organisational safety culture. Do managers create a psychologically safe workplace or team environment where employee are able to raise their concerns early? Do they know how and have the appropriate education and resources to achieve this?
These are just some of the systems that should be reviewed in cases of bullying and harassment.
However, it is important to consider the role of the quality improvement cycle in this (Plan – Do – Check – Act) if you are considering the role of systems. For example, it is not enough to simply implement training and education in the workplace. You need to consider whether the education is working and having its desired impact. If you know it’s not, you can adjust accordingly.
One last point, right now, you might be wondering who should have responsibility for this in your workplace? Is it health and safety, human resources or with someone else? This decision you will need to make influenced by the size and structure of your workplace. It may be more cost effective to outsource these functions to an external third party.
The important question is that you don’t ignore the lessons that can be learned. They do, ultimately, save you time and money.
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