A Members’ Guide to Dealing With
HARASSMENT, BULLYING AND VIOLENCE IN THE WORKPLACE
Forward By Terry Burke General Secretary QIEU
QIEU considers any form of harassment, bullying or violence in the workplace to be unacceptable behaviour. All staff and students should be able to work in an atmosphere based on mutual respect and the dignity of each individual. Harassment based on sex, race and disability is unlawful under the Commonwealth Sex Discrimination Act 1984 and the Queensland Anti-Discrimination Act 1991. All harassment, bullying and violence are contrary to the duty of care to provide a safe framework for work and learning. Under the Workplace Health and Safety Act 1995 your employer has an obligation to ensure the health and safety of all workers. Employees also have an obligation to take reasonable care at work. This would include reporting workplace bullying. This booklet is designed to assist QIEU members deal with the issues of harassment, bullying and violence in their workplaces. A thorough knowledge of the nature of these behaviours and the impact on both the staff and the work environment is essential if all forms of harassment, bullying and violence are to be eliminated from workplaces. Programs should also be in place to educate students about discrimination and to counter harassment, bullying and all forms of verbal or physical violence. Parents also need to be informed and involved in the development of appropriate policies and procedures. The QIEU policy framework to counter harassment, bullying and violence applies to all members of the school community.
Terry Burke General Secretary
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CONTENTS
Page Definitions........................................................................................ 4
Types of Harassment and Bullying ................................................. 5
Impact of Harassment and Bullying ................................................ 7
Policies and Procedures ................................................................... 8
Formal Procedures for Preventing and Settling Disputes in Relation to Harassment of Employees............................................. 10
Suggestions for Dealing with Harassment and Bullying ................ 11
Legal Avenues for Complaints ........................................................ 13
Helpful Resources............................................................................ 16
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DEFINITIONS Harassment Harassment is any behaviour which is not invited and not welcomed and which often occurs because of a person’s sex, race, age, marital status, disability, sexuality, religious beliefs or political persuasion. Harassment offends, upsets, humiliates or scares another person. It makes the workplace uncomfortable and unpleasant. Harassment often occurs when power is used inappropriately as in employer/employee relations. Harassment is not always intended – acts or behaviour which some see as amusing or trivial may hurt or offend another. Acts of hatred on the grounds of race, homosexuality or HIV/AIDS may constitute vilification contrary to anti-discrimination laws. Sexual Harassment Sexual Harassment is a form of discrimination. It consists of offensive, abusive, belittling or threatening behaviour directed at a person or a group of people because of their sex. The behaviour is unwelcome, unsolicited, and usually repeated. Sexual harassment makes the workplace unpleasant, humiliating or intimidating for the people or group threatened by this behaviour. The Federal Sex Discrimination Act, 1984 Section 28 A (I), defines sexual harassment as follows: ‘… a person sexually harasses another person (the person harassed) if: a) The person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or b) Engages in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.’
Workplace Bullying Workplace bullying is ‘the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice.’ Bullying at work is becoming increasingly recognised as a major factor in workplace stress. Bullying is a form of psychological harassment and women and men at all levels of employment can be affected by it. In the education context, the bully can be a principal, a coordinator, a colleague, a student or a parent. A bully is a person who uses strength or power to coerce others by fear. Workplace bullying exists in various forms and involves behaviour that intimidates, degrades or humiliates an employee. 4
TYPES OF HARASSMENT AND BULLYING Harassment and bullying in the workplace can take many forms. It can be overt or subtle, direct or indirect, for example, where a hostile feeling or environment is created without any direct attacks being made on a person. Harassment and bullying may occur between colleagues, across age and gender, between groups or individuals. In relationships where formal authority and power can be exercised, it can be particularly distressing and intimidating, especially if threats are made in relation to performance review or to job security. Mutual attraction between people is not sexual harassment. Similarly, the tensions and conflict which occur in all workplaces should be able to be managed without harassment, bullying, verbal or physical violence. Some forms of verbal harassment include: ! ! ! ! ! ! ! ! ! ! ! ! ! !
sexual or suggestive remarks making fun of someone imitating someone’s accent spreading rumours obscene telephone calls/unsolicited letters, faxes or Email messages repeated unwelcome invitations offensive jokes repeated questions about personal life threats, insults or name calling the use of language that is not suitable in the workplace suggestive comments about a person’s private life or sexual preference speaking in a language that the subject of the comment cannot understand use of offensive ditties, songs, chants or war cries making unwelcomed comments about a person’s clothing or physical attributes
Some forms of non-verbal harassment include: ! ! ! ! ! ! ! ! ! ! ! ! !
putting sexually suggestive, offensive or degrading/insulting material on walls, computer screen savers, E-mail, etc. suggestive looks or leers wolf whistling unwelcome practical jokes displaying or circulating racist cartoons or literature mimicking someone with a disability following victim home from work ignoring someone or being particularly cold or distant with them continually ignoring or dismissing someone’s contribution in a meeting/discussion not sharing information moving or taking items of property placing rubbish in victim’s pigeon hole offensive graffiti 5
Some forms of physical harassment include: ! ! ! ! ! ! !
offensive hand or body gestures unnecessarily leaning over someone unnecessary and unwelcome physical contact (pinching, patting, brushing up against a person, touching, kissing, hugging) indecent or sexual assault or attempted assault pushing, shoving, jostling or fighting putting a hand or an object (like a payslip or a note) into someone’s pocket damage to property, such as teachers’ cars
Some forms of Professional Harassment include: ! !
threat of pay back for complaining about workload issues including class size, timetable and equity in workload creating barriers to promotion by selection based on criteria other than merit
Sometimes the behaviour may be very open. At other times it may be subtle and not easily observed by others. It may include verbal abuse, behaviour which is intended to punish, constant ‘put-downs’, aggression, and poorly managed conflicts of opinion or ‘personality clashes’. Persistent, unreasonable criticism of work performance is also a form of bullying, as is the threat or use of inappropriate performance review. Unfortunately, student violence against teachers, including damage to teachers’ property, is of increasing concern. Assault, both physical and threatened, is a criminal offence and should be reported to the police for action.
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IMPACT OF HARASSMENT AND BULLYING Often harassing behaviour is perceived to be too trivial to warrant attention, or the person subjected to harassment may seem unaffected by the behaviour. Experience has shown, however, wherever harassment occurs the cumulative effects may: ! ! !
Erode the well being of the individual or group targeted. Undermine or sour the work atmosphere. Lower the harassed worker’s overall performance.
The staff member subjected to harassing behaviour does not always complain. He or she may lack the confidence to speak up on his or her own behalf, feel unable to do so or feel too intimidated or embarrassed to complain. The bully, because of his or her behaviour, may also become isolated. The effect on the workplace is felt by lack of productivity, poor communication and a soured work atmosphere. Harassment can have a serious adverse impact on the work satisfaction and performance of teachers and students. For example it can: ! ! ! ! ! ! !
affect work performance and opportunities; create a hostile and unpleasant environment; make employees feel insecure and anxious; lower morale; cause occupational health and safety problems, including stress related illnesses; reflect on the integrity and reputation of the school, diocese or other educational institution; be costly for employers in terms of time, money and other resources when having to deal with and resolve complaints.
IMPACT ON THE INDIVIDUAL A person exposed to harassment and bullying may feel, ! ! ! ! !
angry demoralised confused anxious powerless
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isolated demotivated stressed bewildered intimidated ignored
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undermined fearful belittled frustrated demeaned
These feelings may manifest in physical and/or emotional responses such as:! ! ! ! !
Migraine/headaches Sleeplessness Nausea Depression Lack of motivation
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Irritability Lethargy Anger Loss of self esteem Loss of confidence 7
IMPACT ON THE WORKPLACE Harassment and bullying in schools is not only a problem for the individual but also for the school as a whole. Harassment and bullying can impact on a school by: !
Increasing absenteeism, sick leave, staff turnover
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Lowering morale, eroding staff loyalty and commitment
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Creating an unsafe work environment
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Reducing efficiency and productivity
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Attracting adverse publicity, poor public image
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Increasing costs to the employer associated with: counselling, mediation, recruitment and training of new staff, WorkCover claims and the potential rise in premiums and/or rehabilitation costs.
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Increasing costs to the employer from failure to meet legislative provisions, civil action and criminal action.
POLICIES AND PROCEDURES To meet their obligations under both Federal and State legislation, all employers should establish a just policy and procedure clearly setting out what is expected of both staff and students in terms of appropriate behaviour and what steps will be taken if a complaint of sexual harassment or other forms of harassment, bullying or violence is made. Employers must also ensure there is no victimisation for having made a complaint or having supported someone else in doing so, since victimisation is also unlawful. The main aims of procedures to counter harassment and bullying should be to ensure: !
the behaviour stops
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that there are no reprisals for having made the complaint
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where disadvantage has occurred, that the situation is redressed as far as possible to the complainant’s satisfaction.
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The guiding principles behind such aims are: ! ! ! ! ! ! !
the right of the accused to be fully informed from the outset of the allegations the right of all individuals to be treated with respect observance of natural justice observance of confidentiality acceptance of the legitimacy of the complainant’s feelings support and protection for all parties concerned preservation of a non-judgemental and non-adversarial approach by mediators
Internal procedures which utilise advising, counselling, mediation and conciliation are most likely to provide the desired outcome – a satisfactory resolution for the complainant through a process that recognises individual rights and which enables all parties to keep their sense of self-worth intact. To handle complaints internally, an organisation should have: 1.
a statement of policy in respect of harassment in the organisation.
2.
a set of procedures for handling complaints which takes account of the organisation’s specific context and structure; for example, in a school there should be procedures which deal with complaints against the employer, colleagues, students, parents or visitors.
3.
a designated contact person who will handle complaints and who is trained appropriately and given the necessary time and other support.
4.
procedures for ensuring that all people in the organisation are aware of the policy, procedures and how to make complaints.
5.
training materials, both for training staff who will handle complaints, and also to educate all people within the organisation, with a view to reducing the likelihood of complaints occurring. Procedures should also contain provision for the situation where a complaint is ultimately found to be unsubstantiated, frivolous or vexatious. This may require counselling between the parties or identification of other remedies to address their grievances.
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Formal Procedure for Preventing and Settling Disputes in Relation to Harassment of Employees. NOTE: This procedure will be included in the QIEU log of claims for enterprise agreements in the 1999 round of negotiations and beyond. 1.1.
Harassment for the purpose of this clause includes, but is not limited to, sexual harassment, bullying and violence.
1.2.
Due to the emotive nature of grievances arising out of harassment Clause X, Procedures for Preventing and Settling Disputes of this Agreement shall not be used in instances of harassment.
1.3.
In the event of an incident of harassment the person allegedly harassed may either, a)
attempt to resolve the matter with the harasser by informing that person, either verbally or in writing, that the behaviour is unacceptable and should stop immediately. Where a verbal approach is adopted a diary note should be made recording the attempted resolution, or,
b)
in the case of a member of a Union, contact a Union official, or,
c)
in the case of a person who is not a union member a report may be made to senior management or the nominated representative of the employing authority.
1.4.
Where the approach in paragraph 1.3 (b) or (c) is used, a meeting between the complainant, the alleged harasser, the union official (or other nominated representative of the employee) and a representative of the Employing Authority shall be arranged as soon as practicable. Such meeting shall occur not later than two working days from the time of the request for a meeting by a Union official, or the report by the employee (to senior management or the representative of the employing authority), as the case may be.
1.5.
If, after discussion between the parties, or their nominees as outlined in 1.4 the dispute remains unresolved, the complainant may choose to access legal or industrial procedures, including:
1.6
a)
where the harassment involves acts of discrimination or sexual harassment lodge a complaint under the Queensland Anti-Discrimination Act 1991, or other legislation relating to equality of opportunity, or,
b)
lodge a complaint under the Workplace Health and Safety Act 1995, or,
c)
notify the Queensland Industrial Relations Commission of the existence of a dispute or seek such other industrial remedy as may be appropriate, or
d)
make a complaint to the Police or some other relevant authority, or
e)
seek such other legal remedy as may be appropriate.
The parties agree to formulate, where one does not currently exist, a policy and procedures guide for dealing with harassment in the workplace. The onus being on the employer to ensure publication and dissemination of the material so formulated during the life of this Agreement.
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SUGGESTIONS FOR DEALING WITH HARASSMENT AND BULLYING !
Contact your Union Organiser
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Approach the alleged bully. Sometimes, if you feel confident enough to do so, directly approaching the alleged bully will solve the problem. Tell them that you object to their bullying behaviour and clearly ask them to stop the behaviour. In the first instance, the complainant should attempt to resolve the dispute directly with the harasser. The complainant should ensure that the harasser is verbally informed that the behaviour is unacceptable. This needs to be in unambiguous terms and in plain language. The approach to the harasser should be polite but firm and clear, indicating that the harassment should stop. In some circumstances the person being harassed may not be able to approach the harasser unaided, especially if the harasser is in a position of authority. In such cases the person can choose: !
to seek the assistance of a colleague, union representative, contact officer or Principal in verbally approaching the harasser or
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to make the complaint to the harasser in writing rather than face to face.
Such an approach may be sufficient to stop the harassment. If it is not, a formal complaint should be made. If the verbal approach to the harasser is unsuccessful, a complaint should be made in writing to the Principal or other designated officer, supported by relevant documentation indicating time, date, location, what happened and what was said. The complaint should then be dealt with in accordance with the school/workplace’s harassment policy and procedures. !
Keep a diary on incidents of bullying. Defining and dealing with harassment and bullying can be very difficult. It is important to keep a diary, recording incidents in as much detail as possible. If you can, write these down as soon as possible after they occur, while they are fresh in your mind. Include in your diary notes about how you felt both physically and psychologically after each incident. Write down the names and addresses of people willing to support your story. Keep all copies of correspondence. They can be used in proving your case, and may be seen as evidence in a court of law or tribunal.
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Check the grievance procedure in your Award or Enterprise Agreement Employees working in schools subject to the conditions of a certified agreement will find a grievance procedure clause generally in Part 2 of the agreement. While not 11
specifically designed to address matters of harassment the grievance procedure can be used. However, QIEU has developed a specific grievance procedure for dealing with matters relating to harassment. This clause is to be negotiated during the 1999 rounds of Enterprise Bargaining and beyond. !
Check if your employer has a Bullying Policy. Some workplaces have a specific policy on Harassment, Bullying and Violence.
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Check for the grievance procedure.
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Report the bully to the contact person at your school. If the contact person is the bully then report the incident to the Principal. Remember, you have an obligation under the Workplace Health and Safety Act to report workplace bullying.
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Undertake Counselling or Rehabilitation.
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Undertake personal development courses. These may cover: improving communication skills; conflict resolution; stress management; self-confidence and self-esteem.
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LEGAL AVENUES FOR COMPLAINTS This section has been prepared with reference to a paper presented by Mark Healy the Industrial Officer of the Queensland Nurses’ Union at a conference, “Workplace Bullying – “A Practice You Can’t Afford”, on 14 April, 1999. In the absence of any specific law or industrial remedy to deal with workplace bullying there are a number of laws a victim may use to seek redress and which impose some sanctions on the perpetrators of workplace bullying. 1. WorkCover Queensland Act 1996 Workplace injuries as result of bullying are usually of a psychological or psychiatric nature which may or may not lead to physical injury. Under the WorkCover Act workers are able to claim for injury arising out of or in the course of employment if the employment is a significant contributing factor to the injury. The Act excludes claims for psychological or psychiatric disorders (i) (ii) (iii)
if they are caused by reasonable management action taken in a reasonable way if they arise purely via the worker’s perception of reasonable management action; or, where a condition is caused or exacerbated by the way WorkCover Qld or a selfinsurer processes a claim.
Although this Act is an avenue for a victim of bullying the process is a very lengthy one and does not address the immediate problem faced by the victim nor does it address in any way the actions of the perpetrator. 2. Anti-Discrimination Act 1991 (Qld) The Anti-Discrimination Act can be a very powerful weapon against bullying. However, the worker must be bullied in respect of one of the following attributes: " " " " "
sex impairment marital status religion pregnancy
" " " " "
political belief or activity parental status trade union activity race lawful sexual activity
or because of an association with or relation to a person identified on the basis of any of the above attributes.
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NOTE:
Religious bodies. It is not unlawful under section 109 of the Act for schools established for religious purposes to discriminate if the act is (i) (ii)
in accordance with the doctrine of the religion concerned; and, necessary to avoid offending the religious sensitivities of people of the religion.
The situations outlined above do not take into account the fact that bullying occurs for all sorts of reasons in all sorts of contexts and usually not related specifically to any of the attributes referred to specifically in the Act. However, many successful cases have been brought under this Act. This Act also creates the concept of “sexual harassment”, which is broadly defined. Persons who are sexually harassed (whether in the workplace or elsewhere) have the right to make applications under the Act and a wide range of remedies including injunctions, apologies and payment of money damages are possible. 3. Workplace Health and Safety Act 1995 This Act imposes obligations on employers to ensure workplace health and safety of workers. Employees also have an obligation to take reasonable care at work. This includes following instructions given by your employer relating to the health and safety aspects of workplace bullying eg reporting workplace bullying. In accordance with the Act employers must assess the risk of bullying occurring, put measures in place to prevent or minimise the risk, and monitor the effectiveness of those measures. Failure to do so may result in a case being brought for negligence for failing to provide a safe place of work. 4. Common Law Actions A common law action in the context of the consequences of workplace bullying is an action for damages usually for negligence causing personal injury ie suits based on one or more of these grounds: (i) (ii) (iii)
Negligence Breach of statutory duty Breach of the contract of employment
Common law claims fundamentally compound victims’ problems by prolonging their suffering. The monetary compensation is often too little too late in personal terms. However, if the litigation is successful the victim may be restored to the position that he or she would otherwise have been in. 5. Industrial Relations Act 1999 (Qld) This Act provides for either reinstatement and or compensation in the case of dismissal, or, if the bullying occurs between an employer and a worker the Union can notify the Industrial Relations Commission of an industrial dispute. 14
In the context of bullying, reinstatement or compensation may be sought - if dismissal is the final act of bullying - if a worker is told to resign or be dismissed - if an injured worker is suffering a psychiatric injury and is dismissed because they are unable to work. 6. The Criminal Law In Queensland, the criminal law is codified in the Criminal Code of Queensland of 1899 as amended, and a range of other statutes. In the context of bullying in relation to the Criminal Code an assault must occur before the relevant section of the Code can be invoked. Therefore the Criminal Code is a potential remedy for a specific, limited example of bullying which can be more properly classified as criminal behaviour, rather than bullying. Both under the Criminal Code and under other statutes a range of possible offences are created – (i) (ii) (iii) (iv) (v) (vi)
assault; threat of assault; a range of sexual offences; use of a telephone to harass a person; abusive, insulting, offensive language in a public place; stalking (now widely defined and relevant both in the workplace and elsewhere)
7. Defamation Workplace bullying sometimes involves abusive or insulting language, often used in front of colleagues or students. In addition to destroying a person’s self-esteem and selfconfidence it can damage the person’s reputation. It is important to remember that steps should be taken to prevent bullying before it starts or as soon as it has started. QIEU members can seek legal advice and assistance from the Union which may result in an appropriate letter, drafted by a solicitor, putting the bully on notice that the behaviour is not going to be tolerated. Bullies do not stop until they are forced to stop. That is the nature of their disease or personality disorder or learned behaviour pattern. They must be confronted.
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HELPFUL RESOURCES Guides
Books & Articles
Videos
Stress at Work, Information for Employers, Division of Workplace Health and Safety
Adams, A. (1992) Bullying at Work, Virago Press, London.
BBC (1994) Bullying at Work: Combating Offensive Behaviour in the Workplace (Qld Distributors: Boyd, Faye & Associates)
Violence at Work, A Workplace Health and Safety Guide, Division of Workplace Health and Safety Workplace Bullying, Workers’ Guide, Division of Workplace Health and Safety Workplace Bullying, Employers’ Guide, Division of Workplace Health and Safety
Downing, J. (1995) Finding Your Voice, Allen & Unwin, Sydney. Gorman, P. (1997) “Bullying in the workplace”, Partnerships: linking aspects of workplace health and safety – the way ahead, Conference 16-18 Jul 1997, Kingfisher Bay Resort, SIA, Brisbane.
Video Communications (1995) Workplace Harassment (Qld Distributors: Boyd, Faye & Associates)
McCarthy, P., Sheehan, M., Wilkie, S., and Wilkie W. (eds) (1998) Bullying: Causes, Costs and Cures, Beyond Bullying Association Inc. Randall, P. (1997) Adult Bullying: Perpetrators and Victims, Routledge, London. Spry, M. (1998) Workplace Harassment: What is it and What Should You Do About it? 40(2) Journal of Industrial Relations, pp 232-246. Workplace Bullying “A Practice You Can’t Afford” Conference Papers – 14 April, 1999. Workplace Consulting Qld Level 4, 75 William Street Brisbane Qld 4000 (Ph) 07 3225 2379 (Fax) 07 3234 0064
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