Dealing with bullying and harassment claims in the workplace can be complex. But what if you have investigated and substantiated through an external investigation, yet the court system says it’s still not good enough, you still have to pay $367000 for the decision you made to terminate that employee’s employment?
This is what occurred in a August 2024 decision handed down by the NSW Magistrates Court.
Is there any hope at all? What can we learn from this?
A quick note to the wise, my approach here is not to look at this through the lens of a legally qualified professional, which I am not. It is through a lens of a workplace bullying and harassment prevention specialist.
A Brief Overview – The Case in Question
In May 2022, a senior radiologist’s employment was terminated by the company he worked with. He originally had been the owner of the business, then employed to work for those he had sold the business onto for a set contracted time.
During his employment by the new owners from 2019, there had been a complaint of sexual harassment at the Christmas party; and three complaints from a fellow staff member in relation to bullying type behaviours.
The 2021 Christmas party incident included an allegation the radiologist had “performed a pelvic thrust in the direction of a female employee”. This was behaviour that was denied by the senior radiologist.
The bullying behaviour alleged included abrasive type behaviours, including rudeness, short and sharp tones, being ignored, and feeling blamed for, what was ultimately, workplace technology failings.
An external independent investigator was appointed following the December incident and the report handed to the employer in April 2021. The conduct of the senior radiologist was substantiated by that investigation, supporting that he had acted contrary to the company’s Workplace Policies Handbook. Based on these findings, the chronic bullying of a colleague and the serious nature of the conduct, his employment was terminated.
However, for the senior radiologist, the matter did not end there. He challenged the matter in court. He put forward that the employer had acted unreasonably in it’s process of reaching it’s opinion that he had engaged in serious misconduct; and that it had acted arbitrarily, unreasonably or capriciously in making the decision it did
The judge agreed, in August 2024 awarding $367,952 plus costs to the senior radiologist.
The Balance of Legal Considerations – Health and Safety Versus Fairness
In decision making, the judge acknowledged the difficulties for employers, balancing its competing responsibilities. This boils down to maintaining a safe workplace for all employees and preventing harm versus their duty of fairness and taking unwarranted action against whom a complaint is made. He also reinforces the message that bullying should not be tolerated or condoned.
This is the context that employers need to make their decisions within.
In this case, in his determination, the judge found that while one colleague had witnessed the sexual harassment at the Christmas party, two other employees in a position to do so, had not witnessed any occurrence of the behaviour. Nor had there been any indication of a prior context for the behaviour (eg. intoxication, inappropriate conversations). This created doubt in his mind as to whether it had occurred or not.
In regards to the bullying behaviours, the judge expressed his opinion that the behaviour fell below the line of workplace bullying, even considering how it had been defined in the workplaces own Handbook. With conflicting evidence of others who worked with him and despite the employee having formally raised concerns in late 2019, then escalating again in August 2020 about his conduct, his assessment was there were no strong ground for the senior radiologist’s termination.
Looking Beyond the Decision – Was There a Missed Opportunity for Prevention?
Despite the negative outcome for the employer in this situation, there are a number of lessons we can learn that do help in prevention of bullying at work.
Policies and Procedures
It is important to note that the judge made the following observations of the organisations workplace policies and procedures. He described them as “extensive, thorough and appropriate workplace policies and guidelines”. It is also stated that his decision does not mean those policies and procedures were flawed. That’s a tick for policies and procedures.
Education and Knowledge Gaps
Workplace systems, ineffectively implemented or non-existent, have long been acknowledged to be a cause of workplace bullying claims.
The senior radiologist perceived his target as having deficiency in her role and lacked capacity to do the job at hand. He perceived his target to potentially be placing their patients care and diagnosis at risk.
The judge directly comments that the issues “perhaps more arising out of some deficiencies in the defendant’s systems rather than <the target’s> own competence levels”. He raises the senior radiologist perception that the deficiencies originate from the target’s lack of training or experience in the task at hand.
While not evidenced in this case as occurring or not, this is a broader question we need to consider. Has that employee been given the support and training to do their job. If there are concerns in skills gaps, has this been assessed reasonably and fairly?
Leadership skills
While he may not be a manager in the organisation, the senior radiologist was in a position of authority. The judge states “He ought to have been conscious as to how his behaviour might impact upon her.” The judge advises there is no place for rude and discourteous behaviour, but draws the line as his behaviour not being bullying under the definition.
Leaders at work are not always managers. Those who may have lesser formal power, but power nonetheless, need to have education that ensures they know how to act appropriately at work and in ways that don’t harm. Whether it is internal coaching or mentoring, or external such as abrasive leadership coaching, leadership behavioural skill development is important to achieve a safe workplace.
Employers need to consider what does leadership mean in their workplace, who hold a level of power and authority, and educate them appropriately for that role.
Conflict Management and De-escalation
While not presented overtly in this case, there was a gap in conflict management processes. Unaddressed conflict and it’s escalation is another identified cause of workplace bullying. In this instance, despite the court outcome, problems formal complaints arose across 2019 to 2020. From the decision document, it is difficult to know what actions were taken to de-escalate the issue and effectively resolve it.
However, early intervention and strategising could have prevented this escalation. Implementing a conflict resolution strategy, monitoring for on-going changed behaviour and responding quickly if they don’t prevents harm at work, both to individuals and the broader business. Leaving conflict to continue to fester without action is something employers need to be on top of early.
References
References are linked within the above article